Was Swiss Philosopher & Early Fashion Icon Emer de Vattel Behind Our Concept of "Natural Born Citizen?"
According to a new wave of commentators on the US Constitution — such as “birther” lawyer Mario Apuzzo — the Founding Fathers, when writing that the President was required to be a “natural born citizen,” did not rely on our own English heritage and existing English-language terminology for the concept and definition of that phrase.
Instead, according to Apuzzo and others, the Framers of the Constitution were referring to a concept of citizenship put forward by the Swiss philosopher Emer de Vattel in his 1758 book, “Le Droit des Gens,” or “The Law of Nations.”
In his book, Vattel stated that the “naturels” or “indigenes” were those born in a country of parents who were citizens. And he added, “I say that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
But some have noted that there are just a few small problems with the idea that the Framers of the Constitution were thinking of Monsieur Vattel’s ideas when they wrote that the President of the United States had to be a “natural born citizen.”
The First Problem: Neither Vattel Nor His Translators Had Ever Used the Phrase “Natural Born Citizen.”
The first difficulty is that Vattel’s phrase that Apuzzo and others quote (“les naturels, ou indigènes” ) wasn’t actually translated into English using the phrase “natural born citizens” until 10 years after the Constitution’s Presidential eligibility clause was written.
Hmm. That’s a problem.
Undeterred, and even though Mr. Apuzzo states, “I do not believe Vattel wrote ‘natural-born citizens,'” and even though he admits that Vattel’s book was never translated into English using the phrase “natural born citizens” until 10 years after the Constitution was written — Mr. Apuzzo nonetheless maintains that still the Founding Fathers meant Vattel’s concept when they said “natural born citizen.”
A dubious claim, to be sure.
Exactly how dubious begins to become clear when you understand that the phrase “natural born subject” already had a very long and clear history in the English language.
A Centuries-Established Term With a Centuries-Established Meaning — Well Known in Law
A second issue is that this exact phrase was a standard term in the English common law, which was very well known to most if not all of the Framers of the Constitution. And the phrase had always, literally for centuries, included all children born on the soil of the country.
Even those with two alien parents.
The only exceptions were children born to foreign royalty and ambassadors, and to members of a hostile, invading army.
And exactly how dubious Apuzzo’s claim is becomes even more clear when you look at the research of Professor Donald Lutz into the influences on our Founding Fathers.
Lutz’s research shows clearly that for every one time the Founding Fathers quoted Vattel, they quoted Blackstone, the authority on the common law, a whopping sixteen times.
A Lack of Any Known Quote Ever Attributing the Concept to Vattel
The third problem is that nobody has ever produced any quote, from any significant figure in history, that actually says that the Founding Fathers or Framers of the Constitution relied on Vattel for their definition of “natural born citizen.”
Not once.
So if Vattel’s phrase had never been translated “natural born citizens,” and if “natural born” was a well-known, long-standing term that had been used for centuries to describe subjects of England — not just in England itself but also in the American colonies — and if we have no record whatsoever that actually says that any Founding Father or Framer of the Constitution ever relied on Vattel for the meaning of the term… one begins to wonder why exactly it’s claimed that the meaning came from Vattel?
No Debate At All Implies an Understood, Unambiguous Term.
The fourth problem is that there was no debate at all on the term.
If the Framers of the Constitution had intended the use of this term — with its well-known, established meaning — in any different sense than the one which it had always held (or in other words, if they had intended to mean Monsieur Vattel’s concept), then undoubtedly there would have been some debate as to exactly what the phrase was being used to mean. And undoubtedly there would have been some clarification as well.
But there wasn’t. The records of the Constitutional Convention show no debate whatsoever on the meaning of the term.
Actually, if there had been any doubt as to the term’s meaning, it would’ve been far better to use a phrase that did not have any ambiguity at all in its meaning.
For example, if the Founding Fathers had meant Vattel’s meaning, then logically, one would expect them to have used Vattel’s terminology — either “naturel,” or — even better, “indigene,” which is a recognized word in English as well as in French.
But they didn’t use either of those words.
Actually, even that might have required a bit of clarification, since Noah Webster’s famous 1828 dictionary gives the meaning of “indigene” as “One born in a country; a native animal or plant.”
It would appear that — even in regard to the same word — even Mr. Webster wasn’t thinking in terms of the Swiss guy’s concept.
New Information! We Can Get a Pretty Good Idea of What Was Being Said in Early America Regarding Vattel and Natural Born Citizenship.
Today I realized that it’s actually fairly easy to get a pretty good idea of how much Emer de Vattel was being talked about in regard to “natural born citizenship.”
It turns out that we have a wonderful repository of a large number of searchable books that date back for literally hundreds of years.
This repository of searchable texts is brought to us courtesy of Internet giant Google, and it’s available at books.google.com.
Now if Mr. Vattel and his work — The Law of Nations — was associated with the phrase “natural born citizen,” then undoubtedly somebody will have written something about that fact.
We can therefore get an idea of how closely Vattel’s name was associated with the phrase “natural born citizen” — by searching books of the era both for that phrase and “Vattel” in the same work.
For example, we can look for materials published between the years of, say, 1758 (when Vattel’s work was first published) and the end of 1786 — eight years after the Constitutional Convention. We just have to do an “advanced search.”
That would give us enough time to catch any references to Vattel and “natural born citizen” for close to 30 years before the Constitutional Convention, and up to the publication of the first English-language Vattel version that actually employed the phrase, in 1797.
Actually — let’s go beyond that. Let’s go ahead and search up to January 1, 1800. That will give us a span of 42 years, including about 30 years before and a dozen years after the writing of the US Constitution. It may also give us some results that indicate how much “buzz” there was about “natural born citizen” as used in the 1797 translation of Vattel’s book.
Hmmm… a Google books advanced search for
“natural born citizen” Vattel
on materials published between January 1, 1758 and January 1, 1800, conducted on April 17, 2012, turns up exactly one result.
It’s Vattel’s “Law of Nations,” but it’s in the original French (“Le Droit des Gens”), and it’s dated 1758.
And of course searching the book itself doesn’t turn up the phrase in English. So that’s a dead end.
[Note: Search results don’t appear to be 100% consistent. A search the next day gave NO results, so the search engine automatically dropped the quotes and managed to find a couple of items that used all the words, but not the exact phrase “natural born citizen.”]
Let’s Try Dropping the Word “Citizen.”
Okay… since Americans weren’t really called “citizens” until after the Constitution, let’s change that to:
“natural born” Vattel [dates: January 1, 1758 up to January 1, 1800]
Ah — that’s better. We get 4 additional results.
One of these mentions both “Vattel” and “natural born,” but the mentions are clearly unrelated. Strike one.
The second is titled, “The Revised Reports: Being a Republication of Such Cases in the English Courts of Common Law and Equity : from the Year 1785, as are Still of Practical Utility, Volumes 1-5; Volume 53.”
So… that’s a collection of legal cases from England, put out by a British publisher. (The English company “Sweet & Maxwell” is still in business, by the way). While I couldn’t access the text, it seems quite safe to say that a collection of English court cases won’t contain any discussion of Vattel and “natural born citizen” in America. Strike two.
The third title is “Pamphets of the American Revolution,” dated 1776. A bit of searching reveals this doesn’t appear to be an actual book. Although a similarly-titled book was published in 1965, there’s no record of any such book dated in the 1700s at the Library of Congress, at Amazon, anywhere on the web, or among the 140 million old books in the database of AbeBooks.com. So it doesn’t exist. It’s kind of a rogue database entry, most likely referring to the 1965 book.
Still, that book might contain a pamphlet with both of the phrases in the same pamphlet.
Here’s a description of the 1965 book: “This is the first volume of a four-volume set that will reprint in their entirety the texts of 72 pamphlets relating to the Anglo-American controversy that were published in America in the years 1750-1776.”
So there are a bunch of pamphlets in the 1965 work, not just a few. That seems a dead end as well. Strike three.
Our final “hit” is a reference to the actual 1797 edition of Vattel’s work, which translated his phrase into English as “natural born citizens” for the first time.
Well… of course that would be there. Strike four.
So we’ve completely struck out. As far as we can tell, there does not seem to be record of one single mention of “Vattel” together with the phrase “natural born,” at any time between the years 1758 and 1800, in the entire vast store of books searchable through Google books.
The Founding Fathers Relied on Vattel for the Definition of Natural Born Citizen. So Surely One of Them Must Have Noted it in Some Book Over the Next 50 Years After Writing the Constitution, Right?
We can do a search on this too. “Natural born citizen,” Vattel, years 1787 through 1837.
Hmmm…. That similarly strikes out. Nothing at all.
[Note: A search the next day did produce 3 results, but none of these were useful.]
Maybe the Phrase Just Was Never Used.
Our next question ought to be: Well, how often was the phrase “natural born” used? Maybe it’s a phrase that was only used a very few times, but always in reference to Vattel.
Fortunately, we can do that search, too.
A Google books search on
which will show uses of “natural born” that did NOT include the word “Vattel” (note the use of the “minus”) for dates between January 1, 1758 and January 1, 1800 yields:
About 4,070 results (0.24 seconds)
That sounds like a lot — and it is. Google sometimes overstates the case. Running it all the way down reduces it to 303 real results.
Still, 303 results without Vattel is an awful lot more than the “none” we got from trying to associate Vattel with the term.
So What of the Idea that the Phrase Comes Very Specifically from our English Heritage and the Common Law?
A search on:
“natural born” -vattel “common law”
gives 69 real results for the date range indicated,
and
“natural born” -vattel “common law” england
gives 53 real results.
Interestingly, among these results, one finds letters from the Speaker of the House of Representatives for the “province of the Massachusetts-Bay,” dated January 1768, and addressed to “the Earl of Shelburne, one of His Majesty’s principal Secretaries of State,” and to “Dennis de Berdt, Esq., Agent for the House of Representatives.”
These letters appeal to the aforementioned recipients, on the basis of the fact that, “by the common law,” the colonists in America are “natural-born subjects” — and are therefore “entitled to all the privileges of such.”
Conclusion
Hmmm. it would appear that there is absolutely no historical evidence at all for any link between Vattel’s idea of what citizens were, and the Constitutional phrase, “natural born citizen.”
In fact, it turns out that the Framers of the Constitution actually did use a phrase that had no ambiguity at all in its meaning.
Because it had never, ever been used to mean anything other than what it had always meant.
That phrase, of course, was “natural born.”
And it came directly and absolutely from our English heritage and the common law.
Very well done, as usual.
A couple of other points:
I have noticed on one of Dr Conspiracy’s comments pages that when translators translate the US Constitution into French they do not use the word indigenes for Natural Born Citizen.
Vattel himself never says that any official should be even citizen, much less an indigenes. In fact, he gives several examples of countries picking their sovereigns from the nobility of other countries, and he never says that that is a bad thing.
Vattel recommended some things that the US Constitution does not follow, such as the idea that every country should have a state religion.
Also, more directly, conservatives have long held that under strict construction you are not allowed to read into a law or into the Constitution something that it does not say, and–of course–it does not say “two citizen parents.” (It doesn’t even say “one citizen parent.”)
Very well done, as usual.
Thanks!
I have noticed on one of Dr Conspiracy’s comments pages that when translators translate the US Constitution into French they do not use the word indigenes for Natural Born Citizen.
Like every other instance in which anyone does some more research, this ends badly for the birthers.
I found where poster ballantine listed quite a number of French translations and commentary from the 1800s. They all say pretty much the same thing, and like every other bit of honest research, it isn’t good news for the birthers.
And some new information: I’ve uncovered three separate French translations of the Constitution dated within 12 years of its writing.
One appears to “cop out” by going for a literal word-for-word on the phrase. But the other two are instructive:
“Personne, à moins d’être citoyen-né, ou d’avoir été citoyen des États-Unis, au moment…”
Year published: 1788, the year after the Constitution was written.
Translation: “Nobody, without being a born citizen, or having been a citizen of the United States at the time…”
and:
“Nul ne sera éligible a l’office de président, s’il n’est pas né citoyen des États-Unis…”
Year published: 1799.
Translation: “No one shall be eligible to the office of President, if he is not born a citizen of the United States…”
You said:
Vattel himself never says that any official should be even citizen, much less an indigenes. In fact, he gives several examples of countries picking their sovereigns from the nobility of other countries, and he never says that that is a bad thing.
Vattel recommended some things that the US Constitution does not follow, such as the idea that every country should have a state religion.
I take your point as being this: If the Framers of the Constitution had been so immersed in Vattel’s philosophy on the matter, they probably wouldn’t have cared so much that the President be a “natural-born citizen,” or that we have separation of church and state.
This work sheds light on one point of the natural born citizen debate. I must say that I am very surprised at the results you obtained.
I would like to add the following. Before the issue of natural born citizen can be considered one needs to be aware of that since the adoption of the Fourteenth Amendment there are two citizens in the country of the United States; a citizen of the United States, under Section 1, Clause 1 of the Fourteenth Amendment, and a citizen of a State who is not a citizen of the United States, under Article IV, Section 2, Clause 1 of the Constitution. This can be seen in the following works:
“Two Distinct State Citizens For Purposes Of Diversity Of Citizenship”
http://www.jdsupra.com/post/documentViewer.aspx?fid=b6862bd9-e7a4-4215-bf24-881db524e76f
“Diversity of Citizenship: The Basics”
http://www.jdsupra.com/post/documentViewer.aspx?fid=76d8e5c8-ac03-4a26-91ac-f32701cd3eef
Last, that a citizen of a State who is not a citizen of the United State, under Article IV, Section 2, Clause 1 of the Constitution of the United States was before the adoption of the Fourteenth Amendment, and still is after its adoption, a natural born citizen:
(Before the Fourteenth Amendment)
“It appears that the plaintiff in error, though a native-born citizen of Louisiana, was married in the State of Mississippi, while under age, with the consent of her guardian, to a citizen of the latter State, and that their domicile, during the duration of their marriage, was in Mississippi.” Conner v. Elliott: 59 U.S. (Howard 18) 591, at 592 (1855).
http://books.google.com/books?id=RkcFAAAAYAAJ&pg=PA592#v=onepage&q&f=false
(After the Fourteenth Amendment)
“Joseph A. Iasigi, a native born citizen of Massachusetts, was arrested, February 14, 1897, on a warrant issued by one of the city magistrates of the city of New York, as a fugitive from the justice of the State of Massachusetts.” Iasigi v. Van De Carr: 166 U.S. 391, at 392 (1897).
http://books.google.com/books?id=xuUGAAAAYAAJ&pg=PA392#v=onepage&q&f=false
Warren Hathaway: This seems an interesting point, but a very fine point.
As I see it you are saying that a state has the ability to make someone who is not even a US citizen into a citizen of that state, to in effect naturalize that person.
This happens all the time when citizens from one state move to another state and become citizens of that state. Each state has residency requirements for establishing citizenship but it must under Article 4 eventually grant citizenship to any US citizen who has moved to that state.
Does it have the right to grant state citizenship to someone who is not even a US citizen?
I am not aware of any state that does this, and if it did, it would not make that person into a US citizen–though Article IV states that a citizen of one state must have all the rights of a citizen of another state. It does not say that the US government must accept as a US citizen a foreigner who has been naturalized into the citizenship of one state.
There not being any examples of states that grant citizenship to people who are not US citizens, so far as I know, the issue seems rather theoretical.
However, it is a good traditional states rights issue, and states that are highly interested in states rights–such as in the South–might be willing to try something along these lines. Why don’t you write to their governors and recommend it?
Of course it only affects the citizen part of Natural Born Citizen. Such naturalized citizens would never be Natural Born Citizens because they are not natural born.
ehancock:
Actually one who is a citizen of the United States, under the Fourteenth Amendment, can become a citizen of a State, under the Fourteenth Amendment, not Article IV, Section 2, Clause 1 of Constitution. From the Slaughterhouse Cases:
“. . . One of these privileges is conferred by the very article (Fourteenth Amendment) under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.” Slaughterhouse Cases: 83 U.S. (16 Wall.) 36, at 80 (1873).
http://books.google.com/books?id=DkgFAAAAYAAJ&pg=PA80#v=onepage&q&f=false
Thus, by residing in a State of the Union, a citizen of the United States becomes a citizen of a State under the Fourteenth Amendment. There is also this:
“We do not here mean to say that there may not be a temporary residence in one State, with intent to return to another, which will not create citizenship in the former. But the plaintiff states nothing to take her case out of the definition of citizenship of a State as defined by the first section of the fourteenth amendment.” Bradwell v. the State of Illinois: 83 U.S. 130, at 138 (1873).
http://books.google.com/books?id=DkgFAAAAYAAJ&pg=PA138#v=onepage&q&f=false
Article IV, Section 2, Clause 1 of the Constitution relates to a citizen of a State who is not a citizen of the United States. Such citizen is one that is born in a State of the Union. Naturalization has nothing to do with it. In fact, political jurisdiction (complete jurisdiction) does. Refer to this work to see that the United States (government) has only political jurisdiction (complete jurisdiction) in the District of Columbia, the territories and possessions of the United States and federal enclaves within the several States of the Union. See also that an individual State has political jurisdiction (complete jurisdiction) over its territory:
“Blunders of the Supreme Court of the United States, Part 3”
http://www.jdsupra.com/post/documentViewer.aspx?fid=23482b4c-adb9-4018-a261-285a5445bec2
Since one born in a State (generally) before the Fourteenth Amendment was a citizen of a State and was eligible to be President of the United States of America, then one born in State after the Fourteenth Amendment is eligible to be President of the United States of America. A citizen of the United States is one who is not born in a State:
“The language of the Fourteenth Amendment declaring two kinds of citizenship is discriminating. It is: ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.’ While it thus establishes national citizenship from the mere circumstance of birth within the territory and jurisdiction of the United States, birth within a state does not establish citizenship thereof. State citizenship is ephemeral. It results only from residence and is gained or lost therewith.” Edwards v. People of the State of California: 314 U.S. 160, 183 (concurring opinion of Jackson) (1941).
http://scholar.google.com/scholar_case?case=6778891532287614638
Therefore, one who is a citizen of the United States, under the Fourteenth Amendment is ineligible to be President of the United States of America. Whereas one born in a State of the Union (generally) is eligible to be President of the United States of America.
Sigh, the linkyou provided is just sovereign citizen gibberish. You do realize the case you quote is saying birth in a state does not by itself establish citizenship in that state. Duh. I love how these sovereign citizen types cherry pick a quote here and there and ignore the supreme court cases that are directly on point. You have a case stating exactly who is a Us citizen under the 14th Amendment that has been reaffirmed multiple times. For example:
“On her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866, 14 Stat. 27; Fourteenth Amendment, § 1; United States v. Wong Kim Ark, 169 U. S. 649.” Perkins v. Elg, 307 U.S. 325 (1939).
The term “political jurisdiction” in Elk and WKA was used as such term was used in international law which means the nationals ability to compel someone to fulfill their political obligations to the the United States, i.e., be drafted into the military or be tried fro treason. It was more commonly called one’s political status or allegiance or nationality.
I suggest you actually read the debates of the Congress who adopted the Amendment and see that not a single person said anything to remotely support this nonsense.
Mr. Woodman,
You conclude: “Hmmm. it would appear that there is absolutely no historical evidence at all for any link between Vattel’s idea of what citizens were, and the Constitutional phrase, ‘natural born citizen.’” I see that you persist in making outlandish and desperate claims.
(1) First, you argue that the Founders and Framers relied upon “our our English heritage and the common law” to define an Article II “natural born Citizen.” The historical record is replete with evidence that the Founders and Framers looked to natural law and the law of nations and not to the English common law and Coke and Blackstone for justification for the American Revolution. Without getting into a discussion on Cicero, Pufendorf, Burlamaqui, John Jay, Alexander Hamilton, James Madison, Thomas Jefferson, James Wilson, Benjamin Franklin, John Locke, David Ramsay, St. George Tucker, Chief Justice John Marshall, the early Congresses in 1790, 1795, and 1803, among the many, I will just cite and quote a small part of my brief which was submitted to the Commonwealth Court of Pennsylvania in the case of Kerchner and Laudenslager v. Obama Ballot Challenge.
“Consider that
‘[f]or James Otis, who was as well read as any American in both the English
common law and the European theories of natural law, the conflict became
especially acute. His frantic attempts to reconcile the two laws—Coke
with Vattel—formed the crisis of his life and helped to tear his mind to pieces.
Because he knew English history and the common law too well, because he
clung too stubbornly to the veracity of seventeenth-century notions of
jurisprudence and parliamentary supremacy, he was eventually compelled to
sacrifice Vattel for Coke, to deny natural reason for the sake of historical truth,
and to miss the Revolution.
Gordon S. Wood, The Creation of the American Republic 1776-1787, at 9 (1998) (citing Bernard Bailyn, ed. Pamphlets of the American Revolution, 1750-1776 (Cambridge, 1965–), I, 100-03, 106-07, 121-123, 409-17, 546-52, and noting that Bailyn’s introductory essay to the Pamphlets, entitled “The Transforming Radicalism of the American Revolution,” has been elaborated and republished separately as “The Ideological Origins of the American Revolution” (Cambridge, Mass., 1967)). Of course, we know that the Founders and Framers for sure chose natural reason, for they held “these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. The Declaration of Independence para. 2 (U.S. 1776). And we also know that they had a Revolution to “dissolve the Political bands which have connected them with another” [Great Britain] and to fight for those rights. Id. para. 1. So evidently they chose Vattel rather than Coke or Blackstone. Indeed, “It is therefore to be expected that, when terms of municipal law are found in the Constitution, they are to be understood in the sense in which they were used in Blackstone’s Commentaries; and when the law of nations is referred to, that its principles are to be understood in the sense in which Vattel defined them.” James Brown Scott, The United States of America: A Study in International Organization 439 (1920). It was, for sure, as Gordon S. Wood suggests, the writing and thinking of Vattel that was the primary motivation for them to have that Revolution and create the constitutional republic. On the other hand, you fail to present any contemporaneous historical evidence that the Founders and Framers defined a “natural born Citizen” under the English common law.
(2) Next you argue that there is no evidence which shows a link between Vattel and the “natural born Citizen” clause. May I suggest your read and understand The Venus, 12 U.S. 253 (1814) (Marshall, C.J., dissenting and concurring for other reasons); Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830); Shanks v. Dupont, 28 U.S. 242 (1830); Scott v. Sandford, 60 U.S. 393 (1856) (Daniels, J., concurring); Ludlam, Executrix, & c., v. Ludlam, 26 N.Y. 356 (1863); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167 (1875); Ex parte Reynolds, 20 F. Cas. 582 (C.C.W.D. Ark 1879); United States v. Ward, 42 F. 320 (1890); and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). Also, Chief Justice John Marshall cites and quotes Vattel for his definition of a “native or indigenes” which we know from later Supreme Court and lower court cases means “natural born Citizen.” Scott, Ludlam, Ex parte Reynold, and Ward explicitly refer to Vattel and translate his “Les naturels, ou indigene” into “natural-born Citizen.” Finally, both Minor and Wong confirm Vattel’s law of nations definition of a “natural-born citizen.” On the other hand, you fail to present any legal evidence that the Founders and Framers defined a “natural born Citizen” (not a “citizen of the United States”) under the English common law.
All this completely debunks your arguments.
I suggest to you that instead of trying to prove a legal point by showing us the results of your manipulated google searches, try reading and understanding the actual historical record and U.S. Supreme Court cases.
Mario Apuzzo, Esq.
Speak of the devil, and up he pops.
I love your techniques, Mario. Let’s identify them.
1) Try to label your opponent (whose position is backed up by virtually everybody in the entire history of the issue) as making “outlandish and desperate claims,” in a futile attempt to defend your own, actual “outlandish and desperate claims.”
Don’t produce any actual evidence that your opponent’s claims are “outlandish and desperate.” Well, that’s impossible, because you can’t. Instead, simply try to label your opponent, knowing that some of your gullible audience will believe the assertion simply on the basis of your “authority,” and the apparent confidence with which you put forth the bold lie.
2) Deny the obvious, and do so as strongly and confidently as possible. It’s the bold lie that succeeds –supposedly and sometimes — because honest people just can’t believe you would be so audacious as to be telling it.
Because they would never do such a thing themselves.
Tell me something, Mario. If the Framers of the Constitution didn’t rely on our ENGLISH heritage and the common law for the meaning of “natural born citizen,” then why the heck did they choose to use a specific legal term which was found in the common law and no place else?
And if they were referring to Vattel’s concept, then why the heck didn’t they use Vattel’s terms — and state that the President had to be “a natural,” or “an indigene?”
I would appreciate if you could answer that one question for me, Mario.
I’ll be waiting for your response.
Which, of course, will never come.
3) Claim to have a vast array of resources that supposedly back up your position.
It doesn’t matter that the list consists entirely of sources that fit into one of the following categories:
I would refer readers to all of the past posts on this blog on the topics of “natural born citizen,” and also to the wide-ranging, free and uncensored debate that I previously was involved in with Mr. Apuzzo.
By the way, Mario, one thing that sticks out to me from that debate was the way you reacted when I pointed out that Charles Gordon, one of the sources you cited to supposedly support your nonsense, actually directly and absolutely refutes you. You got all hacked off and said, “The only purpose for which I cited Gordon is…”
In other words, you were perfectly content to cite Gordon on a quote that seemed to support you, but if someone cited his direct contradiction of your claims — oh, my! That was off limits!
That was some good internet entertainment, and I chuckle to this day thinking about it.
4) Use the fact that the Founding Fathers may have listened to Vattel on some point as “proof” that they listened to Vattel on this specific point, even though all actual evidence is to the contrary.
5) Falsely claim that because the Founding Fathers relied on natural law, this means they chose Vattel’s obscure European “natural law” definition of citizenship, rather than the NATURAL LAW concept of “natural born subject” / “natural born citizen” that had prevailed in OUR OWN entire English-heritage culture for the past several CENTURIES.
6) Claim that I “fail to present any contemporaneous historical evidence that the Founders and Framers defined a “natural born Citizen” under the English common law,” when I’ve presented exactly such evidence in the article above.
Do so just hoping that I won’t point out that the opposite is true — that you can’t find or produce one single quote from the Founding Fathers that says they EVER relied on Vattel for the meaning of the term, or a single quote from any real authority in history that says they meant a two-citizen parent requirement.
Do so, in comments to an article which demonstrates the complete lack of any support whatsoever for association of Vattel with the term “natural born citizen!”
7) Cite a bunch of cases, NOT ONE of which states that the Founding Fathers and Framers relied on Vattel, and NOT ONE of which supports the idea that the children of white European immigrants, whether or not the parents were citizens, were ever anything but NATURAL BORN CITIZENS.
You do this, of course, knowing that reading the opinions in all of these cases takes hours, that the language and background for some of them is rather difficult, and that the gullible folks who follow you will NEVER take the time or energy to figure out what they actually say, and will never discover that they do not support your position.
8. Continue to refuse to actually address the points made by your opponent.
9) Claim, “you fail to present any legal evidence that the Founders and Framers defined a ‘natural born Citizen (not a ‘citizen of the United States’) under the English common law…”
In spite of your completely bogus claims regarding both Minor v Happersett and US v Wong Kim Ark, which have been thoroughly shredded into compost beginning here and here.
10) Claim “All this [utter claptrap] completely debunks your arguments.”
11) Claim your opponent has “manipulated” the google searches (when they are perfectly reproducible by anyone who cares to do it), and that your opponent needs to “read and understand the actual historical record and U.S. Supreme Court cases,” when literally everything he’s written in the past — and he’s written quite a bit — is based on an accurate representation of the actual historical and legal facts.
Let’s see, Mario. Did I leave anything out?
I will give you this. You have actually done a pretty good job here of establishing what I have come to understand as the truth.
You’ve done a good job of demonstrating that there doesn’t seem to be any underhanded trick of rhetoric or fallacy that you won’t resort to in order to try and prop up your false, debunked claims.
You’ve done a good job of demonstrating that the rot is so extensive that it simply makes no sense to believe that you are merely mistaken, as opposed to completely and utterly dishonest.
You have therefore presented quite adequate supporting information, in my opinion, for any rational and unbiased observer who actually goes out and checks out all the claims, and the things written on both sides (and I would prefer not to have to say this, but feel literally driven to it by your long list of false claims) to conclude that you are simply a bald-faced liar.
It’s a Chinese finger puzzle, Mario. The more desperately you struggle from your doom, the tighter the trap becomes.
Every single time you post additional nonsense, it only leads to the further debunking of your nonsense, and to further clarity on the part of readers that no rational, informed, honest, truthful lawyer could possibly be genuine about all the utter claptrap that you’ve posted.
It’s over, Mario. I know it, you know it, and most of the readers know it.
Heck, even the birther readers are figuring it out.
Mario’s post shows he has no actual evidence that any Framer relied upon Vattel’s definition, or since there was no defintion of “natural born” in Vattel at such time, that the framers secretly made their own translation of Law of Nations without telling anyone. Kind of a Constitutional prank. All he can do is try to exaggerate Vattel’s influence which, of course, is historically inaccurate. He knows that we can cite a mountain of authority that our entire legal system is based upon the English common law as I would think anyone who went to law school and had to read of multitude of old English cases would know.
The real problem with his argument is that even if Vattel was the framer’s greatest hero, it doesn’t prove any particular provision of the Constitution is based upon Vattel. In fact, there is no evidence that any provision of the Constitution is based upon Vattel and I don’t think the Court has ever made such a statement for any provision of the Constitution. On the other hand, no matter how much one exaggerates Vattel, it is simply a fact that the Constitution is full of terms that had no meaning other than with respect ot the English common law and that the Court has always defined in accordance with the English common law. Simply a fact that habeas corpus, impeachment, ex post facto, bill of attender, high crimes and misdemeanors, cruel and unusual, the right to bear arms, due process, grand jury, presentment, indictment and on and on are all English common law terms that didn’t exist anywhere else in 1787. Of course, “natural born” didn’t exist anywhere else either which is why the Court looked to the common law to define it. After all this bluster, it still remains a fact that there is not a shred of evidence a single framer connected “natural born” to Vattel’s work.
And it is hard to believe he is still arguing any of his cited cases support his theory. By this time he has been told dozens of times that any 1st year law student knows Marshall’s citation to Vattel on domicile of a citizen in time of war means Marshall agreesd with Vattel on that point. Anything else in such quote unrelated to such point is extraneous material. When one quotes someone on a point of tax law, anything in the quote unrelated to such point of tax law, say bankruptcy law, is extraneous material. There is no argument on this point. There is no better way of losing credibility with a court than making claims like this that any lawyer knows is wrong.
Same thing with Justice Daniel’s opinion in Dred Scott where the citation had nothing to do with natural born citizenship but rather was pointing out that the public writers on law believed citizens should have equal rights. I wonder if he has even read this stuff? I could go on and on. Shanks has nothing to do with poeple born after Independence and says nothing of natural born citizenship. Neither does Iglis which deals with someone born to an enemy alien during the war and says nothing about persons born after the war. Sadly, he doesn’t understand that Ludlam said we need to look to the English common law to define US citizenship. Such court took the discredited position that the common law included jus sanguinis but didn’t dispute that it included jus soli as well. Duh. Reynolds and Ward have nothing to do with who is a natural born citizen or citizen at birth. Misrepresenting cases on the internet is one thing. Doing it in court is another.
And all of the very valid points you just made add to my contention that I unfortunately can find no rational alternative to the conclusion that Mario is not just “mistaken,” but is simply lying.
And it is hard to believe he is still arguing any of his cited cases support his theory. By this time he has been told dozens of times that any 1st year law student knows…
Mario has played the role of the “Black Knight” of the Presidential eligibility clause.
Hi Mario,
You do not cite Robinson v. Campbell 16 U.S. 3 Wheat. 212 212 (1818)
“The remedies in the courts of the United States at common law and in equity are to be not according to the practice of state courts, but according to the principles of common law and, equity, as distinguished and defined in that country from which we derive our knowledge of those principles.”
Nor do you cite Justice Woodbury’s interpetation of that case,
“When, the constitution and the acts of Congress speak, as they do in several instances, of the “common law,” do they mean the English Common Law? This court so decided in Robinson v. Campbell, 3 Wheat. 223, adhering, it said, “to the principles of common law and, equity, as distinguished and defined in that country from which we derive our knowledge of those principles.”
Mario loses three ways. He loses on the historical record, because the evidence is clear that Americans at the time of the writing of the Constitution used the term Natural Born Citizens the way it was in the common law, and never used it in the Vattel sense.
He loses on the law, because of the Wong Kim Ark decision that every child born in the USA is Natural Born (except for the children of foreign diplomats).
And he loses on Natural Law too. As he himself points out a key sentence of the Declaration of Independence says: “We hold these truths to be self-evident, that all men are created equal.”
Following that principle, the US born children of foreigners are equal to the US-born children of US citizens. Few of us would disagree with that today. Mario claims that the writers of the Constitution did not really believe it because they really meant that the US-born children of foreigners could not be president while the US-born children of US citizens can.
It is possible that some of the writers of the Constitution thought that, BUT NONE OF THEM SAID IT.
If there had been letters or articles saying that the Americans at the time feared the US-born children of foreigners, there would be a reason for thinking that the writers of the Declaration were hypocrites when they wrote that all men were created equal. To be sure, some of them did not believe that slaves were equal to freemen. But it is unfair to our founders to assume prejudices that there are no evidence for. Only if they actually said “we believe that the US-born children of foreigners are not equal to the US-born children of US citizens” is it fair to them to believe that they thought it. AND THEY DID NOT SAY IT.
Hi ehancock,
As usual, you are quite correct on all three of your points. But I would go even a bit further.
First, the evidence is very clear that Americans at the time of the writing of the Constitution used the term “natural born citizen” the way it was in the common law, and never used it in the Vattel sense.
And the evidence is also very clear that people understood the Presidential eligibility phrase, after the writing of the Constitution, but during the Framers’ lifetimes, to mean “born a citizen” or “born on US soil.”
In fact, I have a new draft article on this very issue in the works.
Secondly, he loses on “natural law” from the point of view that natural law — as viewed in our own, widely-understood English-derived heritage and NOT in the far more obscure, foreign, European, French-language Vattel sense — fully and absolutely supports the commonly-understood definition of “natural born citizen” as someone who was born a citizen, including virtually every child born on the soil of a country without regard to the parents’ citizenship.
Under natural (and divine) law, it was considered that every child born within a kingdom or dominion was a natural subject of that dominion, and that this was the natural order that God had set up. Earthly authorities existed by His plan and under His own authority.
And those earthly authorities owed certain things to those born into their allegiance, and those born into their allegiance owed certain things to the sovereign. It was a two-way relationship that was both divinely and naturally arranged.
Third, as you yourself actually pointed out elsewhere, Apuzzo ALSO loses in regard to the entire weight of scholarly opinion on the matter, for the entire extent of the history of our country. You pointed out, for example, the guide to the Constitution edited by President Reagan’s former Attorney General Edwin Meese, and published by the utterly-conservative Heritage Foundation.
Many hundreds of such authorities have been pointed out, and they all contradict Apuzzo’s bogus claims.
Fourth, in addition to losing on the FACTS of the law, Mario is losing again and again in the contemporary parade of events taking place in current courts of law.
In other words, every single time the issue comes up in a court — and it keeps coming up because people keep pushing it — Mario has the embarrassment of yet another courtroom slapdown to add to his expanding portfolio of official humiliation.
So I’m counting not three different ways that Mr. Apuzzo is losing, but five.
But I suppose we could just shorthand the entire discussion and simply observe that Mario loses on this issue from every conceivable angle — except, of course, to the extent that he’s able to somehow personally seem to benefit (whether in ego or otherwise) from those few gullible souls who actually pony up their attention and adulation to “buy” a bottle of his Constitutional snake oil.
Hmmm… I’m trying to think up an advertisement for Dr. Apuzzo’s Miracle Constitutional Snake Oil.
You couldn’t advertise it as “good for the constitution,” because that, it manifestly is not.
All these points are true, of course.
But I did want to stress the Declaration of Independence and its statement on equality.
Most of us think it absurd today that the US-born child of a foreigner should be thought less qualified or less loyal than the US-born child of a US citizen. Well, there is no evidence that the writers of the US Constitution thought any differently.
Why is this so important? Well the historical record and the law are fundamental, of course. But to imply that the writers of the Constitution thought that a large group of people are not as good as other citizens, without any evidence for it, is distasteful.
I don’t know whether “distasteful” goes far enough. It’s creepy. Lincoln said at Gettysburg that the nation is “dedicated to the proposition that all men are created equal.” Yet here is someone who apparently seriously believes the writers of the Constitution did not think that a large category of US-born people were created equal.
“And he loses on Natural Law too. As he himself points out a key sentence of the Declaration of Independence says: “We hold these truths to be self-evident, that all men are created equal. Following that principle, the US born children of foreigners are equal to the US-born children of US citizens. Few of us would disagree with that today. Mario claims that the writers of the Constitution did not really believe it because they really meant that the US-born children of foreigners could not be president president while the US-born children of US citizens can.”
Exactly. What is the argument that the framers thought the Declaration or natural law embraced jus sanguinis. There is none and no framer suggested it did. The argument simply makes no sense which makes it a typical birther argument.
“It was, for sure, as Gordon S. Wood suggests, the writing and thinking of Vattel that was the primary motivation for them to have that Revolution and create the constitutional republic.”
OMG. We need to rename “Washington D.C.” Vattelland as obviously he is the entire reason for our indepenance. Mario is now officially delusional.
The question is how many courts have to reject their frivolous nonsense before they admit they are wrong. Oh, that’s right, they are birthers who claim 100 loses on standing means they somehow got 100 dishonest judges in a row rather than they wer wrong. We should thank Mario for added another case to cite in the growing list of anti-birther precedent. I suspect will will soon have a few more with a number of frivolous challenges out there. So far:
Ankeny v. Daniels, 916 N.E.2d 678 (Ind. Ct. App. 2009) (“based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents”) transfer denied 929 N.E.2d 789 (Ind. 2010);
Tisdale v. Obama, No. 3: 12-cv-00036-JAG (E.D. Va. Jan. 23, 2012) (order dismissing complaint) (dismissing in forma pauperis complaint pursuant to 28 USC 1915(e)(2)(B)(ii) and holding that “It is well settled that those born in the United States are considered natural born citizens” and that plaintiff’s contentions otherwise are “without merit”);
Allen v. Arizona Democratic Party, Arizona Superior Court (March 7, 2012) (order dismissing complaint)(“rejecting Minor as precedent and citing Wong Kim Ark to conclude “this precedent fully supports that President Obama is a natural born citizen under the Constitution and thus qualified to hold the office of President”)
Purpura and Moran v. Obama, OAL DKT. NO. STE 04534-12 (2012)(citing Ankeny v. Daniels and Wong Kim Ark to conclude that “accepting for the point of this issue that Mr. Obama was born in Hawaii, he is a “natural born Citizen” regardless of the status of his father”);
Farrar et al v. Obama, OSAH-SECSTATE-CE-1215136-60-MALIHI (Feb. 3, 2012) (Ga. Office of State Admin. Hearings) (relying on Wong Kim Ark and Ankeny v. Daniels to hold that Obama is natural born citizen by virtue of his birth in the United States);
Hollander v. McCain, 566 F.Supp.2d 63, 66 (“Those born ‘in the United States, and subject to the jurisdiction thereof’ have been considered American citizens under American law in effect since the time of the founding and thus eligible for the presidency.”) (internal citations omitted).
Jackson v. Obama, 12 SOEB GP 104 (Jan. 27, 2012) (hearing officer recommendation) (Obama’s birth certificate “clearly establishes” his eligibility for office as a “Natural Born Citizen”), objection overruled (Ill. State Bd. of Elections, Feb. 3, 2012);
Freeman v. Obama, 12 SOEB GP 103 (Jan. 27, 2012) (hearing officer recommendation) (Obama’s birth certificate “clearly establishes” his eligibility for office as a “Natural Born Citizen”), objection overruled (Ill. State Board of Elections, Feb. 3, 2012)
.
Now when I read Mr. Apuzzo’s favorite passage from Chief Justice Waite’s opinion in Minor v. Happersett:
“At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”
what are the first three words I see?
Exactly.
But here, let’s give Apuzzo his due credit before we shred his claims from yet another direction.
Mr. Apuzzo claims that the Supreme Court was referring here to American common law, and not English common law — and that the two were very different.
The complimentary thing that can be said for this point it that it is not as inane as it might first appear.
There was in fact a body of American common law that had developed in the colonies starting from the earliest colonization, and there were definitely some distinct differences in law between the different colonies.
1) However — as William Edward Nelson, one of the few writers on American colonial common law notes, by 1660 the several different bodies of common law in the colonies began to converge into a greater consistency with each other, and into a growing acceptance of their English common law heritage. This was more than a century before the American Revolution, and over 125 years before the writing of the Constitution.
2) Furthermore, it appears clear that by the time of the American Revolution, the study of the English common law (as presented by Blackstone (in his “Commentaries on the Laws of England”), was the foundation of legal training in the United States. As far as the Founders themselves were concerned, Professor Donald Lutz, who researched who the Founders actually quoted from, found William Blackstone nearly tied for most-quoted, with St. Paul and Montesquieu. Vattel was a distant 30th.
3) Also, if you read any books of the era leading up to the writing of the Constitution (I looked at google-accessible books from 1767-1787 that clearly had to do with the Colonies), pretty much all the books that speak of “common law” at all make repeated reference to “the common law of England.”
4) Furthermore, the quote itself implies it has reference to the common law of England, because it contains the following two phrases:
“with the nomenclature of which the framers of the Constitution were familiar…
It might just be me, but it seems a little bit odd that the Court would use that wording if only American common law were being referenced.
And,
…it was never doubted that all children born in a country…
This is the phrase that gives the meaning away, more than the “nomenclature” one.
None of the colonies, prior to American independence (which came only a few years before the writing of the Constitution of the new nation) were countries. The end of the Revolutionary War was less than 4 years before the Constitution was written. Therefore, it is difficult to imagine that any of the colonies had ANY “common law” dealing with citizenship issues for “all children born in a country.”
No, it’s clear that the Court here can ONLY be referencing (or at least including) the common law of ENGLAND.
5) The common law of ENGLAND was simply so dominant in discussion that if the Court had meant to exclude it, they CERTAINLY would have stated that they were doing so.
So even Apuzzo’s flagship case — Minor v Happersett — basically says that the interpretation of natural born citizenship involves looking at the common law. They may well be including the common law of the colonies in that phrase — which might be the source of their lack of a definitive pronouncement — but I see no way that they are not also including the common law of England, and stating that the common law of England is highly relevant to the question. And by that law, the children even of aliens, born on the soil, were “natural born.”
Of course, later on, a later Court would delve deeply into those exact same citizenship issues, writing more than 50 pages on the subject, and conclude that the same rule had always applied for centuries, first in England, then in the colonies, then in the new country, and then after the establishment of the Constitution; and that rule was that even children of non-citizens, born in the country, were “natural born subjects” or “natural born citizens” — whichever term was preferable at the time.
So once again — Mario is shot down, with multiple holes in the fuselage of his airplane.
In fact, it is safe for me to say that on EVERY point I am aware of on which ANY of Mario’s claims have been tested, he has gotten shot down.
And its not just because I and others are so good at shooting stuff down. You really can’t factually shoot an argument down (assuming that one is sticking to the facts, which can be verified in all the cases in the whole debate, and I certainly invite people to verify everything for themselves) unless you’ve got the facts to back you up.
But if the facts are with you, and if they aren’t with the other guy, then you get what we see here:
One side continually pops bubbles, and the other side continually gets their bubbles burst.
And the guy that’s continually getting their arguments ripped to shreds really only has four things he can do:
1) leave the argument,
2) try to isolate himself from the issue by shying away from debate,
3) actually switch sides to the correct position, or
4) stick around, but pretend that no bubbles have actually been popped and (most likely) engage in some deceptive arguments in order to try and maintain the illusion that his claims are sound.
I am humbly gratified to have provided a springboard for that discourse.
I have found that egos are often precisely unlike balloons, or bubbles, in that the more inflated they become, the more impenetrable, impervious and invulnerable to the punctures life inflicts upon us they become as well. I think Mario truly perceives all these outcomes differently than those of us outside his particular bubble do.
Sucu is a problem with citing dicta like Minor which gives no detail and cites no authority itself. Wong Kim Ark and other cases citing the common law in holding leave no such ambiguity. I guess one can say it is possible Waite meant some common law other than the English common law, but it is dishonest to claim that he actually did because he made no such statement. The fact is that when the Supreme Court has said a multitude of times that the Constitution should be defined by the common law and they have always meant the English common law. Justice Waite himself joined this opinion:
“There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”
No ambiguity there. Justice Waite wrote this:
“Looking, then, to the common law, from whence came the right which the Constitution protects, we find that, when private property is “affected with a public interest, it ceases to be juris privati only.” This was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise De Portibus Maris, 1 Harg.Law Tracts 78, and has been accepted without objection as an essential element in the law of property ever since.”
Waite went on citing the English common law for many pages. I guess Waite changed his mind on what the common law meant. The supreme court on at least 4 occations has cited Minor to support the proposition that the Constitution should be defined by the English common law including, of court, in Wong Kim Ark. I guess no one agrees with Apuzzo as usual.
You bring up a good point which I had noticed only semi-consciously.
The fact that the Court cites no authority whatsoever for that statement in Minor is kind of a dead giveaway that it’s at least likely to be dicta, isn’t it?
Very, very different from the analysis in Wong Kim Ark, which cites authority after authority at every point.
You also raise another very valid and important point as well: Apuzzo claims that when Waite said “the common law,” he means American common law, not the English common law.
Yet Waite himself tells us that when he cites the common law in relation to the Constitution of the United States, it’s (at least primarily) English common law he’s referring to.
So Justice Waite himself refutes Mario.
Oops. Another fail of Apuzzo’s claims.
1. The reference by Minor to “citizen” and “natural-born citizens” shows that the Court was not referring to English common law in defining a “natural-born citizen.” Emer de Vattel, in The Law of Nations, defined the “citizens” (the parents) and the “natural-born citizens” (their children) in Sec. 212 Citizens and natives, where he explained:
The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its
advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and
perpetuate itself otherwise than by the children of the citizens, those children
naturally follow the condition of their fathers, and succeed to all their rights.
The society is supposed to desire this, in consequence of what it owes to its
own preservation; and it is presumed, as matter of course, that each citizen,
on entering into society, peserves to his children the right of becoming
members of it. The country of the fathers is therefore that of he children;
and these become true citizens merely by their tacit consent. We shall soon
see whether, on their coming to the years of discretion, they may renounce
their right, and what they owe to the society in which they were born. I
say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will
be only the place of his birth, and not his country.
In Minor v. Happersett, 88 U.S. 162, 167-68 (1875), the Court explained that the Founders and Framers adopted the term “citizen” for the members of the new republic and explained what a “citizen” is. It said:
For convenience it has been found necessary to give a name to this
membership. The object is to designate by a title the person and the relation
he bears to the nation. For this purpose the words “subject,” “inhabitant,”
and “citizen” have been used, and the choice between them is sometimes
made to depend upon the form of the government. Citizen is now more
commonly employed, however, and as it has been considered better suited to
the description of one living under a republican government, it was adopted
by nearly all of the States upon their separation from Great Britain, and was
afterwards adopted in the Articles of Confederation and in the Constitution
of the United States. When used in this sense it is understood as conveying
the idea of membership of a nation, and nothing more.
Id. at 166. The word “citizen” was used to convey membership in a nation. This concept came from the law of nations and not the English common law. The English common law did not speak about membership in any nation. Rather, it referenced subjethood to the King for life.
(2) The reference by Minor to “parents who were its citizens” also shows that the Court was not referring to English common law in defining a “natural-born citizen.” Minor defined a “natural-born citizen.” It told us that the “common-law” provided that definition. Providing the same Vattelian definition without citing Vattel, it stated:
The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was
never doubted that all children born in a country of parents who were its
citizens became themselves, upon their birth, citizens also. These were
natives or natural-born citizens, as distinguished from aliens or foreigners.
Some authorities go further and include as citizens children born within the
jurisdiction without reference to the citizenship of their parents. As to this
class there have been doubts, but never as to the first. For the purposes of
this case, it is not necessary to solve these doubts. It is sufficient, for
everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.
Id., 167-68 (emphasis supplied). Minor did not cite Vattel but as can be seen the Court’s definition of a “citizen” and a “natural born Citizen” are taken directly out of Vattel’s Section 212. Minor told us that all “natural-born citizens” (born of citizen parents) are “citizens” (members of the nation) but not all “citizens” (members of the nation) are “natural-born citizens” (born of citizen parents).
First, the English common law did not make any real distinction between a “subject” and a “natural born subject,” for even naturalized subjects were considered “natural born subjects.” Second, if the “common-law” of which Minor spoke was the English common law, the whole Minor Court (there was no concurring or dissenting opinion) would not have said that “there have been doubts” that a child born in the United States to alien parents was even a “citizen.” Clearly, under Blackstone’s English common law, he was a “natural born subject” which according to you would have also made him a “natural-born citizen.” But the Court said there have been doubts whether that child was even a “citizen,” let alone a “natural-born citizen,” and hence, the English common law was not the rule of decision in the U.S. on the question of national citizenship. This is further confirmed by the Naturalization Act of 1790, 1795, 1802, and 1855 which provided that only the children of citizens could be citizens, no matter where born (which included the United States). This convincingly proves that Minor was referring to a national American “common-law” which had its basis on matters of citizenship in the law of nations which as Vattel explains in Section 212 of The Law of Nations defined a “natural-born citizen” as “those born in the country, of parents who are citizens.” Given the definition it provided of the clause, it could not and did not refer to the English common law. See also Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (Souter, J., dissenting) (the Founders were hostile to the implicit reception of English common law doctrine as federal law).
3. Minor’s use of the term “in a country” shows that Minor was referring to the law of nations and American common law and not English common law when it defined a “natural-born citizen.”
The English common law when defining subjecthood did not use the term “country.” Rather, it used the term “dominions” and also required “obedience.” The term “country” comes from the law of nations and is suited for republics and not monarchies. Vattel in Section 211 of the Law of Nations specifically defined “What is our country.” The context of the term shows that it was used for a republic and not a monarchy.
The word “country” was a term that was adopted by the American patriots. It was not a term that was used in the English common law. For example, see George Mason, Thursday, ne 19, 1788, One of Virginia’s delegates to the Constitutional Convention (“In that country, which we formerly called our mother country, they have had, for many centuries, certain fundamental maxims, which have secured their persons and properties, and prevented a dismemberment of their country”).
Minor used the same phrase as Shanks v. Dupont, 28 U.S. 242, 245 (1830) wherein the Court said: “If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father, for children born in a country, continuing while under age in the family of the father, partake of his national character as a citizen of that country.” In this case, the U.S. Supreme Court again articulated the new national standard for American citizenship which as we see was different from what it had been under the English common law.
The reference to “in a country” being part of the law of nations which became part of American common law is also found in Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879): “[T]he offspring of free persons…follows the condition of the father, and the rule partus sequitur patrem prevails in determining their status. 1 Bouv. Inst., 198, § 502; 31 Barb. 486; 2 Bouv. Law Dict. 147; Shanks v. Dupont, 3 Pet. [28 U.S.] 242. This is the universal maxim of the common law with regard to freemen — as old as the common law, or even as the Roman civil law… No other rules than the ones above enumerated ever did prevail in this or any other civilized country. In the case of Ludlam v. Ludlam, 31 Barb. 486, the court says: ‘The universal maxim of [**17] the common law being partus sequitur patrem, it is sufficient for the application of this doctrine that the father should be a subject lawfully, and without breach of his allegiance beyond sea, no matter what may be the condition of the mother.’ The law of nations, which becomes, when applicable to an existing condition of affairs in a country, a part of the common law of that country, declares the same rule. Vattel, in his Law of Nations (page 101), says: ‘As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, these children naturally follow the condition of their fathers and succeed to their rights. * * * The country of the father is, therefore, that of the children, and these become true citizens merely by their tacit consent.’ Again, on page 102, Vattel says: ‘By the law of nature alone, children follow the condition of their fathers and enter into all their rights.’ This law of nature, as far as it has become a part of the common law, in the absence of any positive enactment on the subject, must be the rule in this case.”
(4) There also is no mention whatsoever in the Minor decision about “obedience,” which was used in the English common law as one of the factors needed to have a natural born subject.
(5) That some states through their constitutions and statutes adopted the English common law until abrogated by statue legislatures does not prove that Minor was referring to the English common law to define a “natural-born citizen.” As I have explained numerous times, the English common law did continue to have a limited and temporary application at the state level. But that law had no such application on the national level. Both James Madison and James Wilson make this point clear.
(6) That the Founders and Framers brought the English common law into the Bill of Rights on a very limited basis is not without more evidence that they also used the English common law and not the law of nations to define a “natural-born citizen.” The “natural-born citizen” clause was incorporated into the original Constitution. While the Founders and Framers expressly included the law of nations into that original Constitution, they did not do the same with the English common law.
So, for the foregoing reasons (“citizens,” “parents who were its citizens,” “in a country,” “obedience,” and state v. national application) we can reasonably conclude that Minor used American common law which on matters regarding citizenship had its originas in the law of nations and not English common law to define a “natural-born citizen.”
Mario Apuzzo, Esq.
Mr. Apuzzo
Why don’t you try your arguments, which have lost in every legal venue so far, in a structured debate with Frank Arduini on Reality Check Radio?
Spin and parse all you want it doesn’t prove anything. Waite said the “common law” and claiming that you have figured out he was really citing the law of nations or Vattel is simply more dishonesty. It is true that there is no doubt under the English common law about native children of subjects and it is not surprising someone one the court might have doubts about children of aliens when such issue was not before the court and hence wouldn’t have been researched. One can say that if he was citing Vattel he would say there were doubts about children of aliens either. And, of course, he does not say the doubts about children of aliens are about a type of citizen other than natural born citizen. Claiming courts say things they don’t actually say by parsing and trying to read between the lines is dishonest and unethical.
You can try to marginalize the common law all you want but Waite himself joined the Smith v. Alabama decision which clearly explains it is the English common law that we look to in order to define terms in the Constitution. Waite used the term “common law” in numerous cases. Why not show us evidence that he was talking about some other common law other than the one inhereted from England.
Of course this is all rather silly since the Court would leave no ambiguity in Wong Kim Ark that it is the English common law that we look to define natural born and we are seeing judge after judge has no problem seeing this.
With respect to your other nonsense, I suggest you actually read Story’s opinion in Shanks. Her father was a citizen and the context was election between nations during the revolution. Story the same day made clear in Inglis that we adopted the English common law jus soli rule. But you already know that and are trying to misrepresent what he said. The fact is that no court has ever said a native born child of aliens born after the revolution followed the condition of the father with respect to citizenship. The Supreme court has spoken directly on the subject and their opinion counts, not yours.
“it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.”
And you know that no court has ever said any native born person was subject to derivative naturalization under those naturalization acts and in fact the courts have said they cannot be naturalized. Simply dishonest to say naturlization acts applied to them.
“The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class.” Chief Justice Taney, Dred Scott v. Sandford, 60 U.S. at 417 (1857)
“It appears, then, that the only power expressly granted to Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth.” Justice Curtis, Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 478 (1857)
Funny how you ignore all the clear statements from the Supreme Court you don’t like. Oh, and did you not actually read Ludlam before you cite it?
“The same question is presented, therefore, in this respect, which arose in Lynch v. Clark (1 Sandf. Ch. R, 583), where it is, I think, very clearly shown that, in the absence of any statute) or any decisions of our own courts, State or National, on the subject, the question of citizenship can only be determined by reference to the English common law, which, at the time of the adoption of the Constitution of the United States, was, to a greater or less extent, recognized as the law of all the States by which that Constitution was adopted. Ludlam v. Ludlam, 26 NY 356, 360-61 (1863).
Whoops. The entire opinion was an analysis of the English common law which it said we adopted and it specifically said “childern of of aliens parents, born within the kingdom were citizens.” Thus, it espoused the discredited theory that the English common law was both jus sanguinis and jus soli and doesn’t help you at all.
One can say that if he was citing Vattel he would say there were doubts about children of aliens either.
I assume that you meant, “One can say that if he was citing Vattel he would say there were no doubts about children of aliens either.”
Ouch on Ludlam v Ludlam! That quote from this case in 1863 or 1864 (which was obviously well after the writing of the Presidential eligibility clause) bears repeating:
“The same question is presented, therefore, in this respect, which arose in Lynch v. Clark… where it is, I think, very clearly shown that, in the absence of any statute, or any decisions of our own courts, state or national, on the subject, the question of citizenship can only be determined by reference to the English common law, which, at the time of the adoption of the Constitution of the United States, was, to a greater or less extent, recognized as the law of all the states by which that Constitution was adopted.”
So the principle clearly stated in Ludlam v Ludlam was that since there was no clear guidance from any other authority, the case could only be decided with reference to English common law.
And once again, the source that Mario cites refutes him.
Okay, Mario has made a bunch of “Vattel versus the English common law” points here, and I’m going to make a fuller answer to them.
First point:
1. The reference by Minor to “citizen” and “natural-born citizens” shows that the Court was not referring to English common law in defining a “natural-born citizen.”
On the contrary, the reference to “citizen” shows no such thing at all, for two reasons.
1) the word “citizen” was an established word in the English language long before the Revolution.
Proof: A google books advanced search on citizen “law of nations” from 1700 through 1787 produces “about 919 results.”
A google books advanced search on citizen “common law” on the same dates produces “about 1,760 results.”
So if the books we have reference to are representative, the term “citizen” was used TWICE as often in works referring to the common law as in works referring to “the law of nations.”
Your two-citizen-parent claim is so untrue that it seems there’s hardly any point you can make which cannot legitimately be examined further, turned back and used to impale your arguments.
2) the phrase “natural born” was a known legal term which came straight out of the English common law and was never, EVER used in association with Vattel’s concept until 10 years after the writing of the Constitution.
Neither did the Supreme Court ever state that the word “citizen” came from “the law of nations” — which wouldn’t necessarily refer to Vattel’s particular concepts of the “law of nations” even if they had, and certainly would not necessarily have referred to his book “Le Droit des Gens.”
So it doesn’t matter what Vattel said about “citizens.” There is no evidence whatsoever that the Founding Fathers paid the slightest attention to his views on the matter, and particularly in regard to Presidenial eligibility. There is only speculation and “would have” on your part, and it all goes completely against everything we actually do know.
Next point:
(2) The reference by Minor to “parents who were its citizens” also shows that the Court was not referring to English common law in defining a “natural-born citizen.” Minor defined a “natural-born citizen.” It told us that the “common-law” provided that definition. Providing the same Vattelian definition without citing Vattel, it stated…
As you well know, stating that “it was never doubted” that Bob was a CITIZEN but that “there have been doubts” as to whether Mary was or not is NOT a statement that Mary isn’t a citizen, and it’s not a statement on whether or not she’s a natural born citizen. You simply make up the claim that it is.
And as you well know, the Court in Minor therefore never provided any “definition” that excluded Mary from such citizenship. This has been discussed at length.
And as you well know, even if they had made such a “definition,” it would’ve been overturned by Wong Kim Ark. You have repeatedly refused to address the actual statements in US v Wong Kim Ark which show clearly that the Court found Wong to be not only a “citizen” but also “natural born,” and you persist in making the false claim that the court found Wong to be “only a citizen.”
You do so on the basis that that’s all they said in the final disposition of the case, conveniently ignoring that they stated that any child born on US soil of domiciled alien parents was “natural born,” in order to try and preserve your lie that per the Supreme Court two citizen parents are “required” for natural born citizenship.
And it clearly IS a lie, since the Supreme Court never ruled in your favor, has clearly ruled directly against you, and after long discussion you continue to produce manipulative arguments to deny the fact.
Continuing:
Second, if the “common-law” of which Minor spoke was the English common law, the whole Minor Court (there was no concurring or dissenting opinion) would not have said that “there have been doubts” that a child born in the United States to alien parents was even a “citizen.”
Ballantine has made a good response to your point — including the retort that if Waite had been speaking of Vattel there would’ve been “no doubt” either, and including the fact that all precedent shows that our courts — including the Supreme Court and Justice Waite himself in particular — referred to the English common law for help in interpreting the Constitution.
But I’ll add a bit more.
First we ought to note what Mario’s defending here. He has been reduced to swearing — against all available evidence and having produced absolutely NONE of his own — that when Minor v Happersett said “At common-law, with the nomenclature of which the framers of the Constitution were familiar,” they were EXCLUDING English common law from that statement.
This is after it’s been shown that the two or three sentences in Minor are absolute DICTA. And incidentally, if these few sentences hadn’t been dicta, the Court would have GIVEN its sources and we wouldn’t even be asking what they were referring to — since when the Court actually decides on a matter, they source their reasoning and decision thoroughly.
This is after it’s been shown that even if these couple of sentences hadn’t been dicta, they gave no “definition” of “natural born citizen.”
This is after it’s been shown that even if they HAD given a “definition,” the Court never stated that two citizen parents are required to make a natural born citizen.
And this is after it’s been shown that even if they HAD made such a statement, it would’ve been overruled by the later Court that decided US v Wong Kim Ark.
But back to the little teeny island that Apuzzo has been reduced to defending.
I personally think that Justice Waite, when he wrote “At common-law, with the nomenclature of which the framers of the Constitution were familiar,” likely had some reference to both American and English common law.
As the court in Ludlam noted, though, there really wasn’t much at all in the way of useful information or precedent to be gained from American courts (if anything). A very great deal of the useful precedent was in our English heritage, and in the English common law, which continued to form the basis for the entire legal education of students at our nation’s first law school, William and Mary under George Wyeth.
And this was exactly the position that the Court in Wong Kim Ark took, when they actually addressed the issue head on, 23 years after Minor.
3. Minor’s use of the term “in a country” shows that Minor was referring to the law of nations and American common law and not English common law when it defined a “natural-born citizen.”, and
(4) There also is no mention whatsoever in the Minor decision about “obedience,” which was used in the English common law as one of the factors needed to have a natural born subject.
The English common law when defining subjecthood did not use the term “country.” Rather, it used the term “dominions” and also required “obedience.”
You’re kidding, right? Because you can’t SERIOUSLY be contending that the fact that Waite didn’t go into a discussion of “DOMINIONS” and “OBEDIENCE” in the THREE BRIEF SENTENCES he devoted to the subject, that he can’t possibly have been talking about the English common law?
This is about like claiming that if someone mentions “a Ford” without embarking on a discussion of the workings of the internal combustion engine, he couldn’t possibly be referring to cars — and must instead be referring to the crossing of a river.
(5) That some states through their constitutions and statutes adopted the English common law until abrogated by statue legislatures does not prove that Minor was referring to the English common law to define a “natural-born citizen.” As I have explained numerous times, the English common law did continue to have a limited and temporary application at the state level. But that law had no such application on the national level. Both James Madison and James Wilson make this point clear.
The first and very obvious point here is that you’ve failed completely to show that the Court in Minor was excluding the English common law from their reference to “the common-law.” And ALL of the evidence produced indicates that in fact, at a minimum, they were INCLUDING the English common law, and moreover, that almost certainly it was this that they had their primary reference to.
And while we most certainly did not adopt the English common law at the national level, the United States Supreme Court in US v Wong Kim Ark made it abundantly clear that our Constitution was framed using its legal terminology, and that if we wanted to understand those terms, we had to look to the English common law in order to do so.
Heck — !!! This VERY point was even referred to by the previous Supreme Court in Minor v Happersett — when they stated, “At common-law, with the nomenclature of which the framers of the Constitution were familiar…“
Apuzzo’s most interesting point from the next section is this:
While the Founders and Framers expressly included the law of nations into that original Constitution, they did not do the same with the English common law.
The reason this point is interesting is that the Framers did in fact use the phrase “Offenses against the Law of Nations” in the Constitution.
So what were they saying? That Congress could punish people who burned Vattel’s book?
Obviously not.
Well, then, what did they mean by “the Law of Nations,” and did they necessarily have reference to any concepts from Vattel in that phrase?
Well… perhaps. But perhaps not.
Obviously, a search for “law of nations” and Vattel would likely produce quite a few hits, since Vattel wrote a book that was translated into English with that title.
But if we search at google books for books published between the publication of Vattel’s work (1758) and up to about the end of the lifetime of the Framers of the Consitution (1825), for the following choices:
1) “offenses against the law of nations” vattel, and
2) “offenses against the law of nations” blackstone,
the first choice produces exactly one result (“Pamphlets of the American Revolution,” which as I’ve noted elsewhere has reference to a BUNCH of different topics),
and the second choice — the one with Blackstone instead of Vattel — produces 3 results.
There is therefore no evidence that when the Framers of the Constitution wrote that Congress had the power to punish “Offenses Against the Law of Nations,” they were referring to Vattel.
Actually, it gets worse… much worse.
It turns out the title of Book 4, Chapter 5, of Blackstone’s Commentaries is:
“Of Offenses against the Law of Nations”
And we know for certain that the Founding Fathers quoted Blackstone (the writer on the English common law) some SIXTEEN TIMES as often as they quoted Vattel.
Since Blackstone wrote an entire chapter in his Commentaries entitled “Of Offenses Against the Law of Nations,” and since they quoted him so much more often, then, the reasonable presumption is that when the Framers of the Constitution put the words “Offenses against the Law of Nations” into our Constitution, they were referring to the concepts put forth by William Blackstone in his Commentaries, and NOT to any concepts put forth by Monsieur Vattel.
Mario, you have now been refuted not just on one or two, but on every single substantive point you made.
In reading Blackstone’s chapter “On Offenses Against the Law of Nations”, he cites three offenses.
1. Violation of safe-conducts ;
2. Infringement of the rights of ambaffadors ; and,
3. Piracy.
And he defines piracy as “THE offence of piracy, by common law, consists in committing those act of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there.”
Compare that to Article I Section 8 Clause 10,
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations
And compare Blackstone’s comments to those of Justice Scalia in his concurring opinion in Sosa v. Alvarez-Machain (03-339) 542 U.S. 692 (2004), 331 F.3d 604, reversed.
“the Framers who included reference to “the Law of Nations” in Article I, §8, cl. 10, of the Constitution … That portion of the general common law known as the law of nations was understood to refer to the accepted practices of nations in their dealings with one another (treatment of ambassadors, immunity of foreign sovereigns from suit, etc.) and with actors on the high seas hostile to all nations and beyond all their territorial jurisdictions (pirates).”
Sounds like Justice Scalia may be familar with Blackstone’s Commentaries.
Not only that Gorefan but putzy needs to look at the section that is in. Notice it’s not in the section about the Executive Branch but instead the legislative branch. So Apuzzo and friends think the founding fathers put together this whole Nick Cage National Treasure Scenario where they hid the meaning in an unrelated section of the constitution. But there’s many more of Vattel’s other beliefs like restriction of the right to bear arms, establishment of religion, state owned property, etc don’t make it in the constitution but we’re supposed to guess what they meant. Uh huh right mario.
This is an excellent point. According to Mr. Apuzzo and the Vattel birthers, the Founding Fathers were crazy about Vattel, ate up every word he spoke, and adopted his philosophy.
Never mind the fact that the Founding Fathers quoted Blackstone 16 times as often as they quoted Vattel…
But if they were such fans of Vattel, why didn’t they adopt his view that only SOME of the people should have the right to bear arms?
Why didn’t they adopt his view that the government could and should restrict freedom of the press?
Why didn’t they adopt his view that ministers of religion are “subordinate” to the government?
And why didn’t they adopt his view that if a neighboring country has an excess of women, and your nation has an excess of men, your nation has “a right” to use force to “procure women?”
A good page on Vattel’s other views is over here.
I never understand the “offenses against the law of nations” argument. The provision came about because Madison thought a problem with the Aritcles of Confederation was that they didn’t give Congress the power to stop a state or individuals from violating international law and dragging the entire country into a war. James Wilson thought it was arrogant to say Congress could define such offenses when the law of nations was defined by all nations. Gov. Morris said the law of nations was too vague so Congress needed such discretion. Giving Congress such power obviously doesn’t mean the the Law of Nation is in the Constitution or that any other term in the Constitution is defined be reference to the Law of Nations.
Again, it is simply a fact that many provisions of the Constitution are taken from English law using terms that didn’t exist in 1787 outside of English law. It is thus accurate to say the English lawyers who wrote the Constitution selectively incorporated English law into the document. In Justice Scalia’s words:
“I don’t use British law for everything. I use British law for those elements of the Constitution that were taken from Britain. The phrase “the right to be confronted with witnesses against him” — what did confrontation consist of in England? It had a meaning to the American colonists, all of whom were intimately familiar with my friend Blackstone. And what they understood when they ratified this Constitution was that they were affirming the rights of Englishmen. So to know what the Constitution meant at the time, you have to know what English law was at the time. And that isn’t so for every provision of the Constitution. The one you mentioned — what does sovereignty consist of? — that is probably one on which I would consult English law, because it was understood when the Constitution was framed that the states remained, at that time in 1789, separate sovereigns. Well, what were the prerogatives of a sovereign, as understood by the framers of the Constitution? The same as was understood by their English forebears. So that’s why I would use English law — not at all because I think we are still very much aligned legally, socially, philosophically with England.”
Wow. That quote from Scalia really sums up and clarifies why we often need to look to the English common law to understand exactly what the Framers of the Constitution were saying when they wrote the document, doesn’t it?
“the English lawyers who wrote the Constitution”
People forget that one of the Framers (Charles Pinckney Cotesworth) attended Oxford University and actually attended the lectures of Justice Blackstone.
Really? That’s very, very interesting.
I didn’t forget it, because I hadn’t been informed of the fact until now (and a quick search confirms: fact it is).
In any event, I won’t forget it in the future! 🙂
Ballantine and others (including the entire darn 50-plus-page Opinion in US v Wong Kim Ark!) have produced clear and compelling evidence that the Supreme Court interprets Constitutional references to citizenship in the light of the English common law.
Mario, you contend, against a veritable mountain of evidence, that the proper interpretation of “citizen” and “natural born citizen” when used in the Constitution must be done NOT in the light of the common law, but in the “light” of Vattel.
You have produced absolutely no direct evidence to prove the point, and it goes against everything we know of that any court has ever said.
If there is such a thing as natural law in the United States it is, as Lincoln said at Gettysburg, “based on the proposition that all men are created equal.” The writers of the Declaration stated that we hold that all men being created equal is SELF EVIDENT.
Yet, Apuzzo wants us to believe that the writers of the US Constitution did not really believe this, that what they really believed stemmed from the theories of a monarchist Swiss writer who apparently held that the citizens born in the country of citizen parents were better than the citizens born in the country of non-citizen parents.
I would concede that this was true, if any of them had actually said it. But fortunately none of them did. This means that we do not have to believe that Ben Franklin, James Madison, Alexander Hamilton and George Washington thought that our US-born grandparents and other US-born children of foreigners were really second class citizens, not as good as the US-born children of US citizens.
WE know our US-born grandparents and other US-born children of foreigners were really JUST as good as the US-born children of US parents. And there is no evidence to the contrary. And there is no evidence that the writers of the US Constitution thought to the contrary.
Sorry, the Gettysburg quotation should, of course read: “dedicated to the proposition that all men are created equal. ”
Dedicated is stronger than based, and Lincoln then went on to say that the Civil War was a test of whether a nation so conceived and so dedicated could long endure.
There is therefore something particularly strange and repulsive in a theory that holds that the Constitution does not hold that the US-born children of foreigners are equal to the US-born children of US citizens, unless it itself says it, or at least that the writers of the Constitution said it. And, as noted, they never did.
Ballantine,
First, you do not actually address my points (“citizens,” “parents who were its citizens,” “in a country,” “obedience,” state v. national application, and Bill of Rights), but rather go on your own about the English common law without providing any evidence from the Founders and Framers that they adopted the English common law to define the new national citizenship in the republic.
Second, now let me address each one of your baseless points:
(1) You said: “Spin and parse all you want it doesn’t prove anything. Waite said the “common law” and claiming that you have figured out he was really citing the law of nations or Vattel is simply more dishonesty. It is true that there is no doubt under the English common law about native children of subjects and it is not surprising someone one the court might have doubts about children of aliens when such issue was not before the court and hence wouldn’t have been researched. One can say that if he was citing Vattel he would say there were doubts about children of aliens either. And, of course, he does not say the doubts about children of aliens are about a type of citizen other than natural born citizen. Claiming courts say things they don’t actually say by parsing and trying to read between the lines is dishonest and unethical.”
My response: This is a miserable fail trying to explain why Minor inserted into the definition of a “natural born Citizen” the element of citizen parents and said that “there have been doubts” that the children born in the United States to alien parents were even “citizens.” Apart that your response is nonsensical, to suggest that someone relying upon the English common law would say that there are no doubts that a child born in a country to citizen parents is a “natural-born citizen” is absurd. For those children born within the King’s dominions, the citizenship of the child’s parents was simply not necessary. Hence, someone relying on the English common law for any citizenship definition would not have made such a statement. Note that the Court in Wong Kim Ark, which relied upon the English common law and domicile of the child’s parents rather than their citizenship to declare Wong a Fourteenth Amendment “citizen of the United States,” did not make any such statement, but rather argued that such a showing, except for parents who were foreign diplomats or military invaders, was simply not necessary. You also fail to address the point that if Minor was referring to the English common law, it would not have said that “there have been doubts” whether a child born in the United States to alien parents was even a “citizen.”
(2) You said: “You can try to marginalize the common law all you want but Waite himself joined the Smith v. Alabama decision which clearly explains it is the English common law that we look to in order to define terms in the Constitution. Waite used the term “common law” in numerous cases. Why not show us evidence that he was talking about some other common law other than the one inhereted from England.”
My response: I am not marginalizing the “common law.” What I am saying is that Minor defined a “natural-born citizen” under American common law, not English common law. On matters pertaining to the U.S. Constitution, U.S. national affairs, and national citizenship, I do not understand why you insist that that law was English rather than American.
Justice Gray’s reliance on Smith v. Alabama to show that the English common law could be used to define a Fourteenth Amendment “citizen of the United States” was misplaced. The Smith decision was a case involving a state issue. Xxx explain It was not a case involving the national government and national citizenship. In that case, the defendant-appellant argued that the State of Alabama did not have the power to pass a statute regulating his operation of a passenger train. For not getting the prescribed license to operate the train from the local authorities, the train engineer was charged, indicted, and jailed by the local sheriff. The defendant-appellant argued that the Alabama statute, since it regulated passenger train transportation, infringed upon Congress’s exclusive power over interstate commerce. The Court held that the state of Alabama had the power to pass the statue and criminally punish the defendant-appellant for violating it and that the statute was not an infringement of Congress’s exclusive power of interstate commerce and denied the writ of error and affirmed the judgment of the Supreme Court of Alabama. How such a fact pattern produces a rule that we define our national citizenship based on the English common law is beyond me.
We know from the historical evidence from the Founding that while the English common law continued to have a limited application in some states until abrogated by state legislatures, that law had no application on the national level or to provide the rules of decision for defining national citizenship. See letter of 1787 from Madison to Washington in which he states the English common law was not incorporated into the Constitution; See also Federalist No. 42 in which Madison states that the English common law was a “dishonorable and illegitimate guide” for defining the meaning of piracies and felonies in Article I, Section 8, Clause 10; George Mason (in 1788 during the Virginia ratifying convention said “The common law of England is not the common law of these states”); James Wilson (in 1791 in defining citizenship told us that a citizen did not have the same meaning as a “natural born subject” and a citizen could come into being if not the child of a citizen by naturalization, or if the child of a citizen just by reaching the age of majority). In fact, as I have explained numerous times, the English common law was abrogated on the national level as providing the rules for defining citizenship implicitly by the Declaration of Independence and the Constitution and explicitly by the Naturalization Acts of 1790, 1795, 1802, and 1855.
I have more than adequately shown you that Chief Justice Waite relied upon American common law and not English common law in his decision. You are simply dreaming and in great denial to suggest that Justice Waite’s discussion on U.S. citizenship is based on the English common law. Apart from how he defines a “natural-born citizen,” an examination of his word choice shows it came from natural law, the law of nations, and Vattel and not the English common law. And how Chief Justice Waite defined the term is consistent with the founding principles of our nation.
(3) You said: “Of course this is all rather silly since the Court would leave no ambiguity in Wong Kim Ark that it is the English common law that we look to define natural born and we are seeing judge after judge has no problem seeing this.”
My response: So you too now follow the dishonest path of using just “natural born” instead of “natural born Citizen.” Since Wong Kim Ark did not declare Wong a “natural born Citizen,” the new game plan is to say that the Court declared him “natural born” or that the Court talked so much about “natural born” that it must have declared Wong a “natural born Citizen.” Before that, after I argued that there is a constitiutional distinction between a “citizen” and a “natural born Citizen,” all of a sudden anytime a court said “citizen,” the Obots converted it to the court saying “natural born Citizen.” This is how the Obots have played the Wong decision. The Obots and their followers remind me of the Medusa, cut one head off and another one grows.
(4) You said: “With respect to your other nonsense, I suggest you actually read Story’s opinion in Shanks. Her father was a citizen and the context was election between nations during the revolution. Story the same day made clear in Inglis that we adopted the English common law jus soli rule. But you already know that and are trying to misrepresent what he said.”
My response: Justice Story saw the errors of his ways in his concurring opinon (minority opinon) in Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830), where he used the English common law to define citizenship which position was rejected by the majority that included Chief Justice Marshall and so he gave the correct citizenship rule in Shanks. He must have done some soul searching and realized that in America children followed the citizenship of their parents until the age of majority at which time they could chose what citizenship they wanted. And that is what Justice Story said in the majority opinion in Shanks. So we can see that we simply no longer followed the feudal and monarchial notion of the English common law which from mere birth on British soil forced subjecthood for life on children regardless of the citizenship and alliegiance of the parents.
(5) You said: “The fact is that no court has ever said a native born child of aliens born after the revolution followed the condition of the father with respect to citizenship.”
My response: I have already cited the relevant court decisions that say that children followed the citizenship of their parents until the age of majority at which time they could chose another. Not only did our courts say this but also historians who have studied the condition of children and their citizenship during the Founding up to Wong Kim Ark.
(6) You said: “The Supreme court has spoken directly on the subject and their opinion counts, not yours. “it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.”
My response: You have no Founding era evidence for such a statement. Also, produce one U.S. Supreme Court decision other than Wong which supports that statement. While you are at it, produce one statement from early Congress that supports such a statement.
(7) You said: “And you know that no court has ever said any native born person was subject to derivative naturalization under those naturalization acts and in fact the courts have said they cannot be naturalized. Simply dishonest to say naturlization acts applied to them. “The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class.” Chief Justice Taney, Dred Scott v. Sandford, 60 U.S. at 417 (1857)
“It appears, then, that the only power expressly granted to Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth.” Justice Curtis, Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 478 (1857)
Funny how you ignore all the clear statements from the Supreme Court you don’t like.
My response: I do not need a court to help me read the clear text of The Naturalization Acts of 1790, 1795, 1802, and 1855. I guess you are not able to read and want a court to tell us what they mean. Too bad for you that they clearly and simply say that any child of naturalized citizens becomes himself or herself a citizen when the parents naturalize, with no reference to where that child might have been born. That means that for the Founders and Framers, it was jus sanguinis that determined citizenship for children and not jus soli.
(8) You said: Oh, and did you not actually read Ludlam before you cite it?
My response: Yes I have read it. Here is some of what the court said:
In Ludlam v. Ludlam, 26 N. Y. 356 (1883), it appeared that Richard L. Ludlam, a citizen of the United States domiciled in New York, went at the age of eighteen to Peru for business purposes, but took no steps toward naturalization in Peru, or toward a permanent change of domicil. He remained in Peru fourteen years and when in Peru married a Peruvian woman, who also was a native of that country. A child was born to him in Peru. This child was held by the Court of Appeals to be a citizen of the United States, domiciled in New York. From the opinion of the court which was delivered by Selden, J., we learn the following:
It seems to me to result of necessity from these principles, that the children of
English parents, though born abroad, are nevertheless regarded by the common
aw as natural born citizens of England. The decision upon the plea in Calvin’s
case, which was merely repeating what was decided in Cobbledike’s case, as
early as the reign of Edw.I, see Calvin’s case, p. 9 b., necessarily implies that a
child may owe allegiance to the king (i. e., not merely local or temporary, but
natural and permanent allegiance), although born out of the king’s dominions;
and also that this was a broad general rule, not confined to a few exceptional
cases, because if this was an exception the plea could not have been held bad on
demurrer, as it was in both Cobbledike’s and Calvin s cases; but the exception
must have been pleaded.
Now, upon what ground can allegiances in such cases be claimed? If natural
allegiance or allegiance by birth, does not depend upon boundaries or place, as
Calvin’s case asserts, upon what does it depend? There can be but one answer to
the question. It is impossible to suggest any other ground for the obligation
than that of parentage. It must, I apprehend, be transmitted from the parents
to the child, or it could not exist. This being then the nature of permanent
allegiance, it follows that the king of England may properly claim allegiance
from the children of his subjects, wherever born. If then the child of English
parents, though born abroad, is subditus natus a born subject of the king, he
must also be a born citizen of the kingdom. Allegiance and citizenship are as we
have seen, correlative terms, the one being the consideration of the other. So
long therefore as the parents continue to owe allegiance to the crown of
England, so long will their children, by the rules of the common law, whether
born within or without the kingdom, owe similar allegiance, and be entitled to
the corresponding rights of citizenship.
* * *
I suppose the doctrine that children, if legitimate, follow in regard to their
political rights and duties, the condition of their fathers, to be found in natural
law, and to be substantially the same in most, if not all, civilized countries.
Vattel says: “Society not being able to subsist and perpetuate itself, but by the
children of its citizens, those children naturally follow the condition of their
fathers and succeed to all their rights.” B. 1, ch. 19, § 212. In a subsequent
action the same author says: ” It is asked whether the children born of citizens
in a foreign country are citizens, the laws have decided this question in several
countries, and it is neoessary to follow their regulations. By the law of nature
alone, children follow the condition of their fathers, and enter into all their
rights. The place of birth produces no change in this particular, and cannot of
itselt furnish any reason for taking from a child what nature has given him. I
say of itself, for the civil law, or politics, may order otherwise from particular
views. Id., § 215.
It is shown by Vice Chancellor Sandford, in Lynch v. Clark, 1 Sandf. Ch. 583,
675, that the law of France, Spain, and Portugal is in accordance with this
doctrine, by express enactment it is true, as it is now in England and in this
country. But the uniformity goes to show that it is founded upon a law of
nature, and of course prevails in every country, unless, as Vattel says, it is
changed from the municipal law’ from particular views.’
Sure looks like based on what Ludlam found that Obama, born to to a British “natural born subject” and no matter where he was born, was born a “natural born subject” of Great Britain. How can Obama then also be an Article II “natural born Citizen” and eligible to be President and Commander in Chief of the Military?
(9) You said: “The same question is presented, therefore, in this respect, which arose in Lynch v. Clark (1 Sandf. Ch. R, 583), where it is, I think, very clearly shown that, in the absence of any statute or any decisions of our own courts, State or National, on the subject, the question of citizenship can only be determined by reference to the English common law, which, at the time of the adoption of the Constitution of the United States, was, to a greater or less extent, recognized as the law of all the States by which that Constitution was adopted. Ludlam v. Ludlam, 26 NY 356, 360-61 (1863).
Whoops. The entire opinion was an analysis of the English common law which it said we adopted and it specifically said “childern of of aliens parents, born within the kingdom were citizens.” Thus, it espoused the discredited theory that the English common law was both jus sanguinis and jus soli and doesn’t help you at all.
My response: A state court decision about inheritance in the state of New York which looks to the English common law to define state citizenship does not trump the decisions of our U.S. Supreme Court on the meaning of federal citizenship. Even Minor said that “some authorities” believed (surely that included Lynch) that children born in the U.S. to alien parents (the facts of Lynch) are “citizens.” But the Court said “there have been doubts” whether such authorities were correct. In fact, the New York legislature even passed a citizenship statute which overruled Lynch. Additionally, the Naturalization Acts of 1790, 1795, 1802, and 1855 and cases of the U.S. Supreme Court including Minor v. Happersett abrogated any English common law rule for defining national citizenship, thus satisfying the Lynch condition for the non-application of the English common law.
The historical evidence, case law, authorities, reason, logic, and sound public policy are all stacked against you. There is no room for you to go. Not even your rhetoric can save you.
I think we need to ask Mario how he has done with these arguments so far in courts, especially most recently against a 26 year old fresh out of law school attorney before an administrative law judge in New Jersey.
Still afraid to debate are you, Mario?
I do believe Mario thinks written arguments are won based on their weight and volume.
Well you would be wrong in your belief.
Same as you would be wrong to believe the lie spinners here, who claim that native birth suffices to make a “natural born” and that English common law is the source of such an absurdity, when in fact the benchmark English common law case that is cited and relied upon by the SCOTUS, i.e. Calvin’s case, it is made abundantly clear that natural descent was THE paramount essential quality of the TWO REQUIRED essential qualities.
As Lord Coke stated, a “natural born” was such, due “by nature and birth right”, and Coke re-iterated saying “by procreation and birth right”.
It was made quite clear by Lord Coke that native birth alone was not sufficient in making a “natural born” and that it was the “subject” status of the father that the child’s “natural born” status depended.
Ergo: According to Lord Coke, and the English common law, if the father was not a “subject”, then the child cannot be a “subject” no matter where the child was born.
So given that “subject” and “citizen” were “interchangeable” or analogous, then to be consistent with English common law, for a child to be a “natural born” US citizen/subject, the child’s father would have to be a citizen/subject and if the father was not as such, then the child cannot be a citizen/subject.
So now that you know the truth of the matter, there is no need for you to “believe” in lies anymore.
It is quite clear that under the English common law, the children born on English soil, even of parents who were aliens, were “natural born subjects.”
According to you, this implies that all aliens on English soil who have such children are “subjects.” What it REALLY means is that all aliens on English soil in friendship are there IN SUBJECTION TO the authority of the land, which in this case is the King.
From this angle, there might be an argument for excluding the children of illegal aliens.
But non-citizens here in the United States by permission of our government and agreeing to the conditions for coming here are just as much SUBJECT TO, in SUBJECTION TO, or — if you want to use your term which I think is highly inaccurate but we’ll entertain it anyway — “subjects” here as they would be in England.
Or, as the Supreme Court in US v Wong Kim Ark put it — non-citizens have an ALLEGIANCE to the United States. That allegiance may be “local and temporary, continuing only so long as he remains within our territory.”
Nonetheless, that allegiance to our country is — to use the words of the Supreme Court in Wong Kim Ark is — “in the words of Lord Coke in Calvin’s Case… ‘strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject.'”
It appears now that your position is to simply ignore clear, unambiguous statements by the Court that you are wrong. You apparently think you can pick and choose what the Court says only relying on the cases you like which you misrepresent without exception.
(1) You claim I didn’t respond to your arguments about “citizens,” “parents who were its citizens,” “in a country,” “obedience,” state v. national application, and Bill of Rights. That is because such arguments make no sense. When American authorities talked of the English common law they simply exchanged “citizen” for “subject” and the Country for the crown. And the terms “obedience” and “dominions” were sometimes, but not always used even by English authorities. One can find this is Kent, Story, Binney and even Ludlam. For example:
“All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England”
Pretty simple, Our common law on this point is the same as England. I know, it doesn’t count because you say so.
(2) You claim you have somehow proven that Waite was not referring to the English common law. Sorry you have not. To say no one would have doubt over a subject they obviously didn’t research is silly. You cite Ludlam which interpreted the English common law entirely differently from Blackstone. So you know for a fact there was no doubt under English law? And if they were citing Vattel, they wouldn’t say there were just doubts either for Vattel clearly says they would not be citizens. You claim no one had doubts about English common law, please show me one American authority prior to 1874 that said there were doubts about the American common law of citizenship. Show one that actually uses the term “common law.” Sorry, it is simply a lie to say you know Waite wasn’t referring to the English common law. And Smith v. Alabama is only one of the numerous cases in which the court said to look to the English common law to interpret the Constitution. But you know that and you know it has always meant the English common law. See.e.g., Ex Parte Grossman, 267 U.S. 76, 108-09 (1925), South Carolina v. United States, 199 US 437, 450 (1905); Schick v. United States, 195 US 65, 69 (1904); Kansas v. Colorado, 206 US 46, 95 (1907). I guess you can keep pretending this one time they meant another common law.
(3) You make the absurd claim that Justice Gray said the 14th Amendment should be defined by the English common law. Your dishonesty over Wong Kim Ark is getting pathological. It said the terms “citizen” and “natural born citizen” must be defined by the common law then goes on to point out that Justice Waite said “natural born citizen” is defined by the common law following it up with a quote from Smith Alabama clarifying it is the English common law. It then spends 5 pages looking at the English common law before telling us “subject “ means “citizen” and natural born subject and citizen mean the same thing:
“The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before was a “subject of the king” is now “a citizen of the State.”
“All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.”
Notice no judge has trouble understanding this plain clear language. When the court says the definition of natural born subject prevailed under the original Constitution, how can anyone with any self respect claim they are talking 14th Amendment. At this point you are clearly being purposely dishonest.
(4) You continue to show you don’t understand how to read case law by saying Justice Gray only found WKA to be a citizen. What matters is whether the Court defined natural born citizen and whether it is dicta. It did, and it is not. The Court held WKA to be a citizen because both the NBC clause and the 14th Amendment were based upon the definition of natural born subject and WKA would be a natural born subject. Just another way of saying he was a natural born citizen but it doesn’t matter as the definition of NBC is clearly part of the rationale of the case and hence precedent. Again, no judge seems to have a problem understanding this plain English.
(5)Your comments about Story having remorse are comical. Here you sadly want to ignore the discussion that is directly on point by claiming authority that is not on point supports you. In Shanks, Story didn’t say he had remorse, he said after the elaborate discussion of the subject in Inglis, it was only necessary to make a brief statement in this case. Hence, Story points to Inglis to understand the law. Shanks was about someone being born before the war having a right to election and if too young, following the election of her father until majority. Her father elected US citizenship so she was a citizen as a child. The Court never said this ruled applied for people born after the revolution. The Inglis majority did not reject the common law. The common law required the father to owe a temporary allegiance. The majority said there was great doubt the father owed any allegiance to the US so obviously she would not be covered under the common law. They gave her the same right of election that existed in Shanks making clear such rule had no application after 1776. The court also made clear it was not talking about the general rule of citizenship, but the unique circumstances of a revolution. Thus, only Story talks about the general law of citizenship following the revolution and Justice Gray incorporated his comments in the majority opinion of WKA. I know, it doesn’t count because you say so. However, it is simply a fact that no one in Shanks or Inglis said native born children of aliens born after the revolution were not citizens. No court has.
(5) You claim you don’t need authority to interpret the 1790, 1795 and 1802 naturalization acts. So your argument is the supreme court and every legal authority of the 19th century are wrong and you are right because you say so. We know, clear, unambiguous statements of the Court are to be ignored when they disagree with you. Sorry, the opinion of the Court counts, your opinion doesn’t. And it is dishonest to say such Acts say native children of aliens are naturalized. Such acts don’t clarify that derivative citizenship only applies to the foreign born. Of course, actual lawyers look up legal terms and would understand that naturalization, by definition, only applies to the foreign born and hence so clarity is unnecessary. Find me one legal authority that has ever defined “alien” to include any native and ever said any native can be naturalized.
(6)You simply dismiss the clear statement from WKA that anyone born on US soil has always been a native born citizen other than children of aliens. You say there is no support after Gray cited pretty much every legal giant in the early republic including Marshall, Story, Kent, Binney, two attorney generals, a Secretary of State and all the most famous citizenship cases in the early republic. Can’t you read? Gray could have cited dozens of additional authority including Madison, Rawle, Swift, Townsend, Bouvier, Burrel, Dane, Duer, White, Paschel and on and on and on. Is it really possible you don’t know all this authority exists and it all says you are wrong? Again, the opinion of the Court matters, your opinion does not.
(6) I have no idea what your point is with Ludlam. You are the one who cited it and now says it doesn’t count as it is against some authority in your imagination. The question before the Court was United States citizenship, not state citizenship. You really have not read it have you? Such case clearly says to look to the English common law to define US citizenship. However, the Court’s interpretation of the English common law was contrary to pretty much every other legal authority in England and America. And if it held Obama to be a “natural born subject” why does that matter? It doesn’t say he can’t also be a natural born citizen. Such court, and no court, has ever said dual citizenship is a disqualifying and WKA obviously rejected such argument. Ludlam discusses this saying that “children of alien parents, born within the kingdom were citizens” and discussing dual citizenship not being a bar to US citizenship as it says Ludlam is probably a dual citizen and such was no big deal. Can’t you get anything right?
Can’t you get anything right? So, despite all your spin and mischaracterization of cases, you cite no actual authority that supports you and ignore the plain unambiguous statements from the Court that say you are wrong. We have seen judge and judge have no problem understanding this and it is getting quite sad that you can’t admit you are wrong.
From Wong Kim Ark case, where a clear distinction was made bewteen the TWO types of born US citizens.
“The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen ……”
In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
“All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens.”
Justice Swayne was obviously using the hyphenated term “natural born” as an expression of native-born, it was common practice, and the discussion was merely about native birth-right and not about natural descent, nor Article II eligibility clause.
Swayne was also stating only half the truth, as a reading of Calvin’s case reveals that it was the “subject” status of the father which determined whether a child was a “natural born” …. Swayne was generalizing.
Even the US Citizenship and Immigration Service recognizes TWO types of born citizens, i.e. native born and natural born.
“The words “shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922″, as they appeared in the 1936 and 1940 statutes, are prospective and restore the status of native-born or natural-born citizen (WHICHEVER existed prior to the loss) as of the date citizenship was reacquired. ”
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45077/0-0-0-48575.html
We’ve been over this before.
Michael, I’m going to give you fair warning here.
I — and others — put up with your repetitive, fallacy-ridden claims for close to 200 posts back in February over at Reality Check’s blog.
In fact, I think you posted the above quote four times on one thread back in February. I answered the claim then, and did so thoroughly. Anyone who is interested in that particular claim — or your other few claims you harp on — should go and visit that thread, because it’s all been hashed out there.
Several times.
At that time, I said:
Michael,
In every exchange we’ve had, I’ve demonstrated your fallacies again and again and again.
In just ONE particular exchange, I counted FOURTEEN points on which I had factually demonstrated your claims to be absolute nonsense.
In no instance, in the entire long history of this thread, have you ever admitted any proven fact that goes against your fantasy-based opinion. Instead, you have doubled down and accused others of the delusion and obsession with which you are obviously possessed.
It is clear to any rational person who reads this thread that your points are invalid; that you lost the argument a few dozen posts ago; and that anyone who would continue spending significant amounts of time in any attempt to “dialogue” with you would be a fool for allowing you to waste their time in such a manner.
When Reality Check finally shut your repetitive claptrap down, that was followed by the following commentary:
Thomas Brown
March 7, 2012 at 8:51 am
I see you’ve finally lost your ability to tolerate MN’s garbage.
You lasted a lot longer than I did.
Reality Check
March 7, 2012 at 9:11 am
I actually do not like removing posts. However, MichaelN is not here for discussion. It is not like his points are new. He is recycling the same things he wrote for page after page on PJ/TFB over a year ago. He misreads the Calvin case. He misreads Minor v Happersett. He misreads WKA. He misreads history.
He has been told that 10′s of times on multiple blogs and forums. If he wants to start his own blog more power to him. He can also go post at Apuzzo’s blog. It is badly in need of some new content. Unfortunately, MichaelN is not the person to provide new content.
I probably should have left his last insult in the post. He is comparing me to Hitler now – Godwin’s law affirmed in all its glory.
MichaelN
March 4, 2012 at 3:15 am
Johnny’s done a runner.
[RC: John already said he was done wasting time with you. Your points have all been debunked many times and you have nothing new.]
[RC: Personal attack deleted.]
There are very few people on God’s green (and blue) earth that I will moderate. Mario has free rein here, because his points at least make sense, and he doesn’t repeat the same few nonsense points endlessly like you do.
You, however, I’m putting on moderation. After that 3-week-long repetitive troll session in February, I am simply out of patience with you, for good.
If you have a point that’s actually new, it’ll post. If not, it hits the trash.
You all have done nothing that even resembles answering the points and FACTS that I have presented.
This entire pathetic barrage from all of you is a cop-out, referring to some fantasy debunking that never existed and then pretending that because it existed, you are ‘tired” of debunking repeatedly and threatening to censor free-speech in your desperate attempts to avoid facing the points and FACTS presented.
What did Coke mean by “nature and birth right”?
What did Coke mean by “procreation and birth right”?
What did the Minor court rely on to arrive at the conclusion that Virginia Minor was a “natural born citizen” without the court’s resorting to the 14th Amendment?
Why did the Minor court initiate and introduce to the court observation of authoritative doubts as to whether a child born native but to alien parents, was even a citizen at all, without ANY objection or negating comment opposing the foundation of said doubts?
Why did Wong Kim Ark only get ruled as a “citizen” after all the lengthy discussion that took place in the WKA court on the topic of “natural born Citizen”.
What did the US Citizenship and Immigration Service mean by “native born or natural born citizen (WHICHEVER existed …….)”?
What about this from the Wong Kim Ark court, which you desperately and dishonestly evade?
“The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen ……” ?
You won’t answer, because it would expose your deceit and lies!
So you invent an excuse to ban the messenger………… you people are afraid of the truth and go to any lengths to conceal the truth whilst at the same time spread lies.
Yes, Johnny did a runner as did RC.
NONE of you lot have been able to address these points with any semblance of reasonable explanation that has substance.
I’m sure I’m going to regret this, but I’m going to approve your post and even respond.
What did Coke mean by “nature and birth right”?
What did Coke mean by “procreation and birth right”?
Lord Coke, in Calvin’s Case, stated that there were four kinds of ligeances (or allegiance):
There is found in the law four kinds of ligeances:
the first is, ligeantia naturalis, absoluta, pura, et indefinita, and this originally is due by nature and birthright, and is called alta ligeantia and he that oweth this is called subditus natus.
The second is called ligeantia acquisita, not by nature but by acquisition or denization, being called a denizen, or rather donaizon, because he is subditus datus.
The third is ligeantia localis wrought by the law, and that is when an alien that is in amity cometh into England, because as long as he is within England, he is within the King’s protection; therefore so long as he is there, he oweth unto the King a local obedience or ligeance, for that the one (as it hath been said) draweth the other.
The fourth is a legal obedience, or ligeance which is called legal, because the municipal laws of this realm have prescribed the order and form of it; and this to be done upon oath at the Torn or Leet.
The one that interests us isn’t the one by “nature and birthright,” or by “procreation and birthright.” It’s the ligeantia localis, the allegiance owed by aliens who come into a country in friendship.
Coke later tells us that even this allegiance, even though it is only local and temporary, is strong enough that if the alien in friendship has a child while born in the Kingdom, that child is a “natural born subject:”
Sherley a Frenchman, being in amity with the King, came into England, and joyned with divers subjects of this realm in treason against the King and Queen, and the indictment concluded contra ligeant’ suae debitum [against the duty of his allegiance]; for he owed to the King a local obedience, that is, so long as he was within the King’s protection:
which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue here, that issue is a natural born subject…
Michael asks:
What did the Minor court rely on to arrive at the conclusion that Virginia Minor was a “natural born citizen” without the court’s resorting to the 14th Amendment?
That’s easy. They said:
At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.
They relied on the common law, and while Mario Apuzzo claims (with no evidence whatsoever) that they excluded the English common law, I think a reasonable reading is that they had in mind both American and English common law.
The American common law — and like as not, the fact that they hadn’t researched it well — may well have been the source of their doubts.
Why did the Minor court initiate and introduce to the court observation of authoritative doubts as to whether a child born native but to alien parents, was even a citizen at all, without ANY objection or negating comment opposing the foundation of said doubts?
They didn’t make “any objection or negating comment” because the three sentences they spent on the issue was a complete side comment.
Virginia Minor was NOT born in the US of alien parents; she was born in the US of citizen parents. So it was just a three-sentence side comment. They presented no research, no authorities, no nothing except a bite of obiter dicta — side comment.
Why did Wong Kim Ark only get ruled as a “citizen” after all the lengthy discussion that took place in the WKA court on the topic of “natural born Citizen”.
The disposition stated that Wong Kim Ark was “a citizen” because that was the question in the case — whether or not Wong was a citizen.
However, the ratio decidendi — the rationale the Court used to get there clearly stated that a person in Wong’s exact situation, of parents who owed the SAME kind of temporary and local allegiance Wong’s parents were, was [using Coke’s words], a “natural born subject” — or, since “subject” and “citizen” were found by the Court to be “precisely analogous, a “natural born citizen” in US terms.
Since the core reasoning of the case found — as an “irresistible” “conclusion” — that someone in Wong Kim Ark’s exact situation was “natural born,” as well as “a citizen,” the case established a clear and binding precedent that the child born on US soil, even of non-citizen parents, is a natural born citizen. This Supreme Court precedent is why the few “Constitutional” birther cases that have established standing have promptly gotten thrown out on the merits.
I’ve written a whole article on this.
What did the US Citizenship and Immigration Service mean by “native born or natural born citizen (WHICHEVER existed …….)”?
We already went over this one. A native-born citizen is born on US soil. “Native born” citizens are “natural born citizens.”
Children born abroad of US citizen parents are “natural born” citizens who are not “native born” citizens. I have children who are “native born,” and children who are only “natural born.” Any of them are eligible to run for President.
What about this from the Wong Kim Ark court, which you desperately and dishonestly evade?
“The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen ……” ?
I don’t desperately and dishonestly evade that.
Because Horace Binney (who wrote the quote) stated that the child of an alien, born in the US is “as much a citizen as the natural born child of a citizen” doesn’t imply the child of the alien isn’t also natural born.
As I said elsewhere:
This is a lot like saying my neighbor’s tomatoes are just as nutritious as the organic tomatoes from the grocery store. Is that a pronouncement that my neighbor’s tomatoes are NOT organic? No. They might well be. Or, they might not. The sentence doesn’t tell us. It simply tells us that they’re just as nutritious.
And in fact, elsewhere, Binney tells us quite clearly that in the case of the United States and England, “birth within the limits and jurisdiction” of those countries makes “a natural born citizen or subject” “absolutely” — even in instances when the parents are not citizens.
So the exact same author who wrote the quote you gave tells us in no uncertain terms that the two-citizen-parents claim is wrong.
I have an entire article on this, too.
NONE of you lot have been able to address these points with any semblance of reasonable explanation that has substance.
There ya go.
John Woodman said …..
“The one that interests us isn’t the one by “nature and birthright,” or by “procreation and birthright.” It’s the ligeantia localis, the allegiance owed by aliens who come into a country in friendship. ”
We already know what Coke stated about the father of a native born child, and that was that if the father was not a “subject”, then the child cannot be a “subject” even if born native.
It doesn’t matter and it’s completely irrelevant as to why or how the father is not a “subject”, the examples given i.e. foreign envoy, etc are merely a listing of those who are not “subjects”.
The one that “interests” Article II eligibility for the office of POTUS is the one who might be a “natural born”, and THAT is the one described by Coke as one who is such “by nature and birth right” and “by procreation and birth right”.
Now what do YOU suppose Coke meant by stating that a “natural born” was such by virtue of these TWO ESSENTIAL and REQUIRED qualities?
What did Coke mean by “nature and birth right” and “procreation and birth right”?
Now you have so far run away from this question or done your darnedest to evade answering it.
We all know why, don’t we John!
The truthful answer would completely demolish your absurd argument, which is simply driven by political bias, fervently embracing an agenda to suppress the truth by deceit and disseminate falsity.
Let’s see if you can answer my very simple question …………. or are you going to continue to throw up barriers and use evasion tactics?
Over to you John, let’s see how ‘honest’ John is.
MichaelN said….
“What about this from the Wong Kim Ark court, which you desperately and dishonestly evade?
Binney:
“The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen ……” ?
John Woodman said …..
I don’t desperately and dishonestly evade that.
Because Horace Binney (who wrote the quote) stated that the child of an alien, born in the US is “as much a citizen as the natural born child of a citizen” doesn’t imply the child of the alien isn’t also natural born.
As I said elsewhere:
This is a lot like saying my neighbor’s tomatoes are just as nutritious as the organic tomatoes from the grocery store. Is that a pronouncement that my neighbor’s tomatoes are NOT organic? No. They might well be. Or, they might not. The sentence doesn’t tell us. It simply tells us that they’re just as nutritious.”
Response:
Garbage!
Your logic is twisted,warped, deceitful and desperate!
It says what it says, i.e. a native-born child of an alien, is just as much a citizen BY BIRTH-RIGHT as a natural-born child of a citizen.
This statement by Binney, cited in the WKA court, without ANY objection or negating comment, CLEARLY makes the distinction between the TWO types of native-born citizens, showing that the birth-right to “citizen” is a shared quality, but that is where the similarity ENDS.
Binney CLEARLY didn’t think that a native-born child of an alien was a natural-born, because if he had, then he would have said the “natural-born child of an alien” …………. but he didn’t, much to your disappointment.
The USCIS also CLEARLY makes the distinction, when it stated “WHICHEVER” of “native-born or natural-born”.
Keep squirming John, and sleep well at night, if you can.
Michael, let me make this clear:
1) Your history shows that you are an obnoxious, belligerent poster who would continue to insist the ocean is dry even after someone took a large bucket of sea-water and mackerel, and poured it over your head.
I’m not going to tolerate your behavior over here, Michael. I’m just not.
If you can post reasonable points without including insults and taunts and without re-posting things that have already been answered — here or elsewhere — then you may post here.
But from now on, submitting ONE SINGLE USE of any of the following — or of anything like them — is going to get you PERMANENTLY banned from this site.
your absurd argument
driven by political bias
Garbage!
twisted
warped
agenda to suppress the truth
deceit
disseminate falsity.
You have run away
evaded
evasion tactics
desperate
dishonest
squirming
sleep well at night, if you can
2) Secondly, ONE SINGLE INSTANCE of repeating the same debunked nonsense, thinking that if only you yell it a little louder you’ll get your point through, will get you permanently banned from the entire site as well.
3) Third, ONE SINGLE INSTANCE of ignoring a point that I made or claiming it doesn’t count, or otherwise not dealing with it — as you just did — only to return to repeating what I’ve already answered, will get you permanently banned from the entire site.
I’m just not going to put up with you.
Now I can predict how this is going to go.
Within a few posts — and maybe one — you’re probably going to violate at least one of these rules I’ve laid down.
When you do, you will be gone.
And you’ll go off somewhere else and claim that I banned you because I “couldn’t face the truth.”
But anyone who’s followed your postings or who deals with you for very long will know exactly why I did ban you.
So now that we know what’s almost certainly going to happen, let’s play it out.
****************
I am now going to answer your points.
Garbage!
Your logic is twisted,warped, deceitful and desperate!
Your claiming that logic is invalid does not make that logic invalid.
The analogy holds.
Binney’s statement that the child born in the country of two non-citizen parents is “as much a citizen as the natural-born child of a citizen” does not necessarily logically imply that he isn’t also a natural born citizen.
If I state that my neighbor’s home-grown tomatoes are “just as nutritious as the organic tomatoes from the grocery store,” I haven’t told you whether my neighbor’s home-grown tomatoes are organic or not. I have simply stated that they are just as nutritious as the organic ones from the grocery store.
Binney CLEARLY didn’t think that a native-born child of an alien was a natural-born, because if he had, then he would have said the “natural-born child of an alien” …………. but he didn’t, much to your disappointment.
Again, Binney didn’t tell us… there.
But he DID tell us, with crystal clarity, elsewhere in the exact SAME essay.
While talking about the status of children born to US citizens in France, Mr. Binney contrasted the rules regarding children born to foreigners, for the US, England, and France.
Binney quite clearly stated that in the case of the United States and England, “birth within the limits and jurisdiction” of those countries makes “a natural born citizen or subject” “absolutely” — in other words, without any respect whatsoever as to whether the parents were citizens or foreigners.
He contrasted this, in detail, with the law and practice in France.
And it is crystal clear what he was talking about.
Again, I’ve written an entire article on this clear statement from Binney — which you have chosen to completely ignore and reassert your same debunked claim.
Let me give you a hint, Michael.
At this point, you must abandon your original claim — since I have stated that it is debunked and have presented the evidence to debunk it. And you must deal with that evidence.
You must deal with what Binney said — that in the United States and England, “birth within the limits and jurisdiction” of those countries makes “a natural born citizen or subject” “absolutely.” And you must deal with the context in which he said it.
Let me refer you again to that article. If you have any evidence to refute what Binney clearly said, that would be a good place to post it.
Of course you don’t have any such evidence, and can’t refute it, since Binney’s words were clear.
Your choice now is to either concede the point, or refute Binney’s statement. And if you fail or refuse to deal with that evidence, and reassert your original debunked claim, I’m going to ban you permanently.
The USCIS also CLEARLY makes the distinction, when it stated “WHICHEVER” of “native-born or natural-born”.
This is another thing we’ve already dealt with.
By the early to mid 1800’s, statements had begun to proliferate in the literature that Presidential eligibility required being a “native-born” citizen of the United States. No one seems to have ever challenged those statements, because in most instances, native born and natural born citizenship coincide.
But there is a difference.
All “native-born” persons (except children of ambassadors and occupying armies, which might or might not be termed “native-born”) are natural born citizens.
But not all “natural born citizens” are native born.
Since all native born citizens are natural born, but not all natural born citizens are native born, we have a larger number of natural born citizens than we do of native born citizens.
And Presidential eligibility only requires that a person be a “natural born citizen.”
I myself have some children who are native born American citizens. They were born on US soil. Their parents in this case were both US citizens, but that doesn’t matter for their native born citizen status.
I have other children who are “only” natural born citizens. They were born abroad to two United States citizens, and have been US citizens from the moment of their birth. They are not “native born,” but they are “natural born.”
Any of my children would be eligible, on meeting the other qualifications, to run for President of the United States.
If there remains any doubt at all, it concerns those born abroad to US citizen parents. It does not concern those born on US soil, whether to citizen parents or not. But having done the amount of reading that I now have on the subject, I am convinced that the Supreme Court, if need be, would uphold the eligibility of a child born abroad to US citizen parents, and that any one of my kids can grow up to be eligible to the Presidency.
To recap:
Native born citizens are natural born citizens. They reach the natural born standard through jus soli — the law of the soil.
They may also reach that standard through jus sanguinis, the law of blood, but whether they do or do not, doesn’t matter. They have already reached the standard through jus soli.
My other children, born in England, reach the status of natural born citizens through jus sanguinis, the law of blood.
Either route is acceptable. Reaching the standard through both means together is not required.
First, in approving your other recent post, I laid down some ground rules for your participation here, and made it clear that the moment you violate them, you’re gone.
So that we are crystal-clear that you don’t miss those, I request that you review those, in my post above.
Now for your points.
We already know what Coke stated about the father of a native born child, and that was that if the father was not a “subject”, then the child cannot be a “subject” even if born native.
Once again, this is something we’ve already been through.
But I’ll entertain the notion a bit anyway.
First, I’m still not sure we have a clear instance of Coke stating this. The passage you’ve typically quoted says no such thing.
Here’s the passage you’ve typically quoted:
And it is to be observed, that it is nec coelum, nec solum,54 neither the climate nor the soyl, but ligeantia and obedientia that make the subject born: for if enemies should come into the realm, and possess a town or fort, and have issue there, that issue is no subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born under the ligeance of a subject, nor under the protection of the King.
Now when you quote this, you usually drop off the last phrase: nor under the protection of the king.
As far as I recall, your claim that “if the father was not a ‘subject,’ then the child cannot be a ‘subject’ even if born native” is based on this passage with the “NOR” clause DROPPED OFF.
And that’s completely bogus.
Obviously, aliens who were on English soil in friendship were there “under the protection of the king.” Since they were there under the King’s protection, any child they have at that time on English soil was a natural born subject. That’s very clear.
In fact, it has just been stated that Sherley, a specific “alien in amity,” was “within the King’s protection,” and because of that, “he owed to the King a local obedience.”
In other words, as long as he was in England under the King’s protection, the was subject to the King and owed obedience to the King. When he left England and was no longer “local,” the protection of the King went away, and that obedience to the King was no longer owed.
And Coke tells us that that allegiance — even though it was only local (that is, confined to England during the alien’s stay) and temporary (dissolving as soon as the alien left England) was “strong enough to make a natural subject; for if he hath issue here, that issue is a natural born subject.”
It doesn’t matter and it’s completely irrelevant as to why or how the father is not a “subject”, the examples given i.e. foreign envoy, etc are merely a listing of those who are not “subjects”.
What matters is that if the alien present temporarily in friendship — even though he was not a natural-born subject, or a naturalized subject, or even a denizen, had a child on English soil, that child was a natural born subject of England.
And whether you call that alien a “subject” or not, any “subjecthood” on his or her part means only that he or she was temporarily subject to the King while on English soil. No rights of natural-born subject, naturalized subject, or denizen were imparted to that alien. That alien was basically present in England on a tourist visa — but if he or she had a child there, that child was a natural-born subject. And that was crystal clear in the English law.
The one that “interests” Article II eligibility for the office of POTUS is the one who might be a “natural born”, and THAT is the one described by Coke as one who is such “by nature and birth right” and “by procreation and birth right”.
That is correct as far as it goes, depending on exactly who we’re talking about — the parent or the child.
As I said earlier in regard to the PARENT: “The one that interests us isn’t the one by “nature and birthright,” or by “procreation and birthright.” It’s the ligeantia localis, the allegiance owed by aliens who come into a country in friendship.”
That ligeantia localis, or LOCAL ALLEGIANCE, on the part of the PARENT (an alien visiting England in amity) was strong enough to make the child born there a NATURAL BORN SUBJECT.
So the allegiance owed by the parent was different from the allegiance owed by his child born on English soil.
The PARENT was still an alien, who owed ligenatia localis, local and temporary allegiance.
The CHILD was a natural born subject, who owed ligeantia naturalis, absoluta, pura, et indefinita (natural, absolute, pure allegiance), which was also known as ligeantia alta or high allegiance.
I believe this answers everything in your post.
Let’s see if you can answer my very simple question ………….
Done.
The Binney quote is cited twice in the WKA decision:
“Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.” It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides “
Mario Apuzzo continues to say that he believes there is evidence that the writers of the US Constitution regarded the US-born children of foreigners as lower quality citizens, perhaps not even citizens, than the US-born children of US citizens. This despite the evidence that MILLIONS of US-born children of foreigners have been excellent citizens and despite the fact that none of the writers of the Constitution said any such thing.
To be sure, there have been justices after the writing of the Constitution who may have regarded the US-born children of foreigners as lower quality citizens, just as some regarded slaves as inferior. But the writers of the Constitution never said any such thing. He would like us to believe that the Supreme Court said that there were doubts whether the US-born children of foreigners were even US citizens.
Well, if there ever were such doubts, they did not come from the men who wrote the US Constitution. Not one of them ever said that he thought that the US-born child of a foreigner was not a US citizen or should not be a US-citizen, and not one of them wrote that he regarded the US-born children of foreigners as security risks.
And to infer that Ben Franklin, James Madison and George Washington and the others were really prejudiced against the US-born children of foreigners without them saying any such thing is repulsive.
ballantine,
You offer nothing but spin, turn, manipulation, and of course insults, but nothing substantive. So it is true that you cannot teach an old dog new tricks.
I especially love your hilarious position on Inglis and Shanks, which rejected the English common law as defining citizenship in the new America, that they only addressed citizenship during the Revolution and that after the Revolution the English common law feudal and monarchial definition of subjecthood was supposed to kick back in at some undefined future moment. I guess as of 1875 when the unanimous U.S. Supreme Court decided Minor that English common law definition had yet to kick back in.
Your appeal to authorities who are not is also unavailing.
I also like the fact that you refuse to read and comment on the simple text of the Naturalization Acts of 1790, 1795, 1802, and 1855. That text clearly says that the children of aliens became citizens when their parents naturalized if done during their minority. Congress did not say whether those children were born in the United States or out of it because it simply did not matter where they were born. If a child’s father (which meant mother too) was an alien, so was the child. This rule is totally consistent with the rule that prevailed in the new America that children, who did not have the capacity to consent, followed the condition of the parents until their age of majority, at which time they could chose a different allegiance and citizenship. Thomas Jefferson followed the same rule in his 1799 citizenship statutes for Virginia. And where may we find your English common law in any of that?
You will have to do better than this.
So, just for fun, let’s see how many statements there are that were made or adopted by the majority of the Supreme Court that Mario contends don’t count or we can simply ignore because Mario think Justice Waite, in expressly failing to address the citizenship status of native born children of aliens, somehow is the ultimate authority on the subject he failed to address.
“There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” (Clear, unambiguous language quoted by the Court in 6 different cases).
“and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.” ( No ambiguity here. The English rule was incorporated into our original Constitution.)
“All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England..” (Needs no explanation. Natural born subject and citizen mean the same thing and our common law is the same as England. Can Mario read English?)
“The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.” (No explanation needed)
“it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.” (Must be wrong because Mario says so.)
“that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born.” ( I thought our common law was different from England?)
“The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born.” ( I thought our common law was different from England?)
“Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign.” ( Sounds like the English common law)
“Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.” (Story was talking about American citizenship obviously conflating “citizen” and “subject.”)
“Whether a person born within the United States, or becoming a citizen according to the established laws of the country….” (I thought Mario said Marshall believed in Vattel.)
“The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a “subject of the king” is now “a citizen of the State.” (I thought Mario said “subject” meant something different than “citizen”)
“the citizens of the United States are, with the exceptions before mentioned,(namely, foreign-born children of citizens, under statutes to be presently referred to) such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law,…’ (What about parentage? Seems they didn’t get the memo)
“The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute.” ( Sounds like the English common law rule. Duh.)
“Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent. .” (I thought Mario said our common law was different than England)
“And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives,..” (Gee, I thought Mario said our common law was different than England)
“The very learned and useful opinion of Mr. Justice Gray, speaking for the court in United States v. Wong Kim Ark, 169 U. S. 649, establishes that, at common law in England and the United States, the rule with respect to nationality was that of the jus soli, that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute” (“at common law in England and the United States.” I thought Mario said our common law was different from England?)
“We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.” (Mario disagrees and only Mario’s opinion counts)
“Every person born in the United States, and subject to the jurisdiction thereof becomes at once a citizen of the United States, and needs no naturalization.” (I thought Mario said such persons were naturalized? Is English his first language?)
“As municipal law determines how citizenship may be acquired, it follows that persons may have a dual nationality.” (The Law of nations is not municipal law. I thought Mario said dual nationality was not allowed. Duh.)
“Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native born citizens.” (I thought Mario said native-born and natural-born meant different things. Whoops)
“Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency.”
“The alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native born (Luria v. United States, 231 U.S. 9, 22); but he acquires no more”
“Citizenship obtained through naturalization is not a second-class citizenship. It has been said that citizenship carries with it all of the rights and prerogatives of citizenship obtained by birth in this country “save that of eligibility to the Presidency.”
“The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class.” (Mario disagrees so just ignore)
“There are “two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person “born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.” 169 U.S., at 702. Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress. Id., at 703.” (Gee, I thought Mario said native born children of aliens were naturalized?)
So clearly, all these statements of the Supreme Court are false and Mario is right. The Court has repeatedly said our common law of citizenship was the same as England. Obviously doesn’t count. All you can cite are cases that say nothing about people born after the revolution and in no way state native born children of aliens are not citizens and claim that a case expressly declining to address the status of native born children of aliens somehow actually addresses the issue. This is getting embarrassing.
So clearly, all these statements of the Supreme Court are false and Mario is right.
It’s not that they’re false, exactly. It’s just that… um… they don’t mean what you say they mean. Or, they don’t count.
But the unsourced, off-topic, three-sentence dict– er, I mean binding precedent in Minor — which of course means exactly what Mario says it means and not what you or I or others not as skilled in Constitutional interpretation as Mario is would naturally think it says — well, THAT one is really, really important.
ballantine,
You give us all these statements based on English common law. But you do not give us any evidence that the Founders and Framers adopted such statements in defining a “natural born Citizen.”
You say: “All you can cite are cases that say nothing about people born after the revolution and in no way state native born children of aliens are not citizens and claim that a case expressly declining to address the status of native born children of aliens somehow actually addresses the issue. This is getting embarrassing.”
You are well aware of Minor which was decided in 1875 and which says that the “natural-born citizens” are the children born in a country to parents who are citizens of that country. The Court added that “there have been doubts” whether a child born in the United States of alien parents was even a “citizen.” You keep saying that I did not get the English common law memo. I guess the unanimous U.S. Supreme Court in Minor also did not get that memo.
Try again.
Deny and spin, Mario. Deny and spin.
You give us all these statements based on English common law. But you do not give us any evidence that the Founders and Framers adopted such statements in defining a “natural born Citizen.”
The prima facie evidence is in the term itself.
If the Framers of the Constitution had meant naturel or indigene, they would have said naturel or indigene.
They would not have said “natural born citizen” which was clearly and abundantly and perfectly analogous to “natural born subject,” with no debate and no further explanation, unless they had meant what the term evidently and obviously ALWAYS had meant. With the sole twist, of course, that CITIZENS were no longer subject to the Crown, but were subject to a mutually agreed-upon, free society and its laws enacted for the common good.
YOU are the person claiming that when the Framers of the Constitution said “cat,” what they really and truly meant was “dog.” That’s a fairly extraordinary claim to start with, and all the burden of proof is on you to prove it with some really strong evidence — if you can.
But you have produced no such proof AT ALL, only woulda, coulda, shoulda, “backed up” with other statements that don’t even hold up when you examine them.
Citing authorities that when you look them up only hint that they might possibly be driving at the same thing you claim, but… maybe not? And then when you look up the CLEAR statements that these people have to say on citizenship, those exact same authorities that you’ve quoted refute you!
And when confronted with direct refutations of your points by the very authorities you cite, you never, EVER say, “Oops. You know, I must’ve gotten it wrong.”
Is it any wonder that other analysts of the same materials suspect that you are not merely mistaken, but are in fact lying?
As for Minor, you know and I know (and in fact everyone who’s paying any attention at all knows) that your claims in regard to that case are absolute, unadulterated, industrial-grade rubbish — which is clearly demonstrated on just about every point and in just about every conceivable way in a 5-part series of articles beginning here.
John Woodman said …………
“The prima facie evidence is in the term itself.
If the Framers of the Constitution had meant naturel or indigene, they would have said naturel or indigene.”
Response:
If the Framers of the Constitution had meant native born, they would have said born citizen.
The Framers chose “natural born Citizen”, because it described BOTH what the English common law had taught them AND also the principle that Vattel described in 212.
THAT is why in 1790, in the first naturalization act, the US Congress and Senate, (some members of which were also party to the construction and ratification of the US Constitution only 2-3 years earlier), used the term “natural born” to describe a child born NON-NATIVE to US citizen parents.
It was natural descent which was THE paramount element in the making of a “natural born”.
It was 5 years later, in the next naturalization act of 1795, which repealed the 1790 act, that the term “natural born” was absent, replaced by “citizen”, this could only have been because MORE was required to make a “natural born”, with natural descent already established as one of the REQUIRED elements, then it must have been the other requirement of native birth-right that was not existent with a child born off-shore to US citizens, so that child could not be described as a “natural born”.
Just like the English common law, it was native birth-right which was added to the PRIMARY element of natural descent, that made the “natural born”.
It’s a certainty that the Framers did not mean for Article II “natural born” to mean merely native without the quality of natural descent.
Gonna run away again John, or just ban me, that’s what you people do.
If the Framers of the Constitution had meant native born, they would have said born citizen.
The Framers chose “natural born Citizen”, because it described BOTH what the English common law had taught them AND also the principle that Vattel described in 212.
Oddly enough, I agree with you, to a point.
I think the Framers of the Constitution chose “natural born citizen” because it meant what they wanted to say.
I think they primarily had in mind anybody born on US soil, whether the parents were citizens or not. And particularly in those days, anybody who came to America was very, very likely to stay. Who do you hear of who ever immigrated to America from Germany or England or Ireland or Italy, and ever moved back? Of course you may not hear any of the stories anyway, as you’re in Australia. But I’ve never heard of anybody who ever immigrated to America in the early days of our republic and then moved back to Europe.
And they already had 150 years of history to show them that people moved to America, and their children became, 100%, Americans.
So there was very little risk at all in using the term “natural born citizen,” knowing that the children of Germans and Irish people and Italians would be included in that term.
I think as well they wanted the children born abroad of Americans to be included — and that’s why they clarified that during the first Congress.
The dropping of the “natural born” 5 years later is interesting. I’m not sure whether it was some kind of oversight, or whether it stemmed from the feat that a child born to American parents abroad would grow up French, or English, then come back here and run for President. Although I doubt that fear was very great. But that entire Act was based on some anxiety about foreigners coming over and having too much influence, so it could be.
It was natural descent which was THE paramount element in the making of a “natural born”.
I’m sorry, but James Madison, the Father of the Constitution, says otherwise:
“It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States.”
You said:
It was 5 years later, in the next naturalization act of 1795, which repealed the 1790 act, that the term “natural born” was absent, replaced by “citizen”, this could only have been because MORE was required to make a “natural born”, with natural descent already established as one of the REQUIRED elements, then it must have been the other requirement of native birth-right that was not existent with a child born off-shore to US citizens, so that child could not be described as a “natural born”.
But they had already established that such a child was to be considered a natural born citizen.
Again, I think it’s possible they may have had more anxiety about a child of American parents raised overseas than about a child of foreign parents raised in America.
It’s a certainty that the Framers did not mean for Article II “natural born” to mean merely native without the quality of natural descent.
The term “natural born” had always included all persons born on the soil of the country, whether the parents were citizens (or subjects) or aliens.
Gonna run away again John, or just ban me, that’s what you people do.
On the contrary, the discussion is generally much freer on non-birther blogs than it is on birther blogs.
You’ve behaved reasonably well so far. But you should know: I’m not going to tolerate any bad behavior from you. If you want to post here, post reasonable points, reasonable arguments, not personal attacks and repetitions of stuff that’s already been debunked.
John Woodman said ………
“I think the Framers of the Constitution chose “natural born citizen” because it meant what they wanted to say.
I think they primarily had in mind anybody born on US soil, whether the parents were citizens or not. And particularly in those days, anybody who came to America was very, very likely to stay. Who do you hear of who ever immigrated to America from Germany or England or Ireland or Italy, and ever moved back?”
Response:
Your bias preference to believe other than what is staring you squarely in the eye is no surprise, given your devious agenda.
The reality is that evidence strongly suggests that the Framers “primarily had in mind anybody born” to US citizens, was “natural born”, whether born on-shore or off-shore.
This is evidenced by the use of the term “natural born” to describe a child born NON-native to US citizen parents in the first naturalization act of 1790, enacted by the US Congress and Senate, a mere 2-3 years after ratification of the Constitution, some sitting members of the Congress and Senate were also party to the framing, adoption and ratification of the US Constitution.
Does THAT tell you anything?
It establishes the FACT that natural descent was THE primary consideration in determining “natural born”.
This is also consistent with the English common law, according to Lord Coke, where he pointed out that a child cannot be a subject, if his father is not a subject, even if the child is native-born.
It is irrelevant as to why or how a father may not be a subject, it is the FACT that the father is not a subject.
The examples of the few instances where people are not subjects, i.e. foreign diplomats, enemy invaders, etc are just that, examples of those who are NOT subjects.
Coke also went further to point out that a child born NON-native to a subject of highest allegiance and his English subject wife, was a “natural born”, even though the child was born out of the realm.
Coke also made it clear, when he pointed-out that a child born as a “natural born” was such “by nature and birth right” and/or “by procreation and birth right”, that there are TWO ESSENTIAL, REQUIRED qualities that make a “natural born”.
It is OBVIOUS and as plain as the nose on your face that these two qualities mean natural descent and native birth-right.
Now if you say they mean otherwise, then present your case, rather than run away, or attempt to sweep it under the carpet or breeze over it like it doesn’t exist.
As you can see, both in England and US, it was the subject/citizen status of the father that was THE PRIMARY factor to determine “natural born” status of his child.
If you drop your political bias and your agenda to deceive and back-door change the Constitution, you will see that what I have shown you is the truth of the matter.
It is fallacious to cite people who just plain got it wrong, who have tried to change it, as if it changes the truth.
It doesn’t matter about the “legal expertise” status of those who have inadvertently got it wrong or who deliberately have been and are trying to revise or change the meaning of “natural born”, nor does it matter how many time or how long they have been leaving their stamp in the courts of record to create a history of bogus precedents.
The truth is the truth, it won’t and can never change.
There is no doubt that the term “natural born” means primarily by NATURAL DESCENT, in English common law AND to Vattel, AND to the Framers of the USC, who were very learned in BOTH English common law AND Vattel AND they had a seriously important imperative to ensure that the office of POTUS was to be secured and protected from any foreign, influence, persuasion, allegiance and claim.
You entire argument is based on the absurdity that the Framers were slack in their duty and the fallacies of “Appeal to Authority”, “Appeal to Belief” and”Appeal to Common Practice”.
http://www.nizkor.org/features/fallacies/
Your bias preference to believe other than what is staring you squarely in the eye is no surprise, given your devious agenda.
That gets you banned. This is your final warning. You are now one word away from being permanently banned. And it doesn’t matter whether that word is “devious,” “false,” or “run,” or any other word that is insulting, taunting, accusing, or repetitive of points I’ve already answered. You’ve had enough time now to have received the warnings.
The reality is that evidence strongly suggests that the Framers “primarily had in mind anybody born” to US citizens, was “natural born”, whether born on-shore or off-shore.
This is evidenced by the use of the term “natural born” to describe a child born NON-native to US citizen parents in the first naturalization act of 1790, enacted by the US Congress and Senate, a mere 2-3 years after ratification of the Constitution, some sitting members of the Congress and Senate were also party to the framing, adoption and ratification of the US Constitution.
Does THAT tell you anything?
Yes. It tells me two things:
1) They wanted children born to US citizens abroad to be counted as natural born citizens.
2) They weren’t sure they were already indisputably in that category.
Note that they NEVER passed a similar law clarifying the status of children born on US soil. Why not? Because it was already crystal clear under the precedent of centuries that such children were natural born citizens.
This is also consistent with the English common law, according to Lord Coke, where he pointed out that a child cannot be a subject, if his father is not a subject, even if the child is native-born.
It is irrelevant as to why or how a father may not be a subject, it is the FACT that the father is not a subject.
I’ve just dealt with the fact that aliens in England in friendship, while “subject” to the King, had none of the status of natural born subjects, naturalized subjects, or even of denizens. Their allegiance was “local and temporary” — confined only to the boundaries of England and lasting only so long as they were in that country.
Nonetheless, that local, temporary, apparently even tourist-visa allegiance was strong enough to make their children, if born on English soil, natural-born subjects of England.
And as natural born subjects of England, the allegiance of their children born on English soil was “high allegiance.” It was permanent and non-local. In other words, the children owed an allegiance to the King that was world-wide.
Coke also went further to point out that a child born NON-native to a subject of highest allegiance and his English subject wife, was a “natural born”, even though the child was born out of the realm.
Fine. Irrelevant. The child born to an alien visiting England was a natural-born subject. It was certainly that way if the alien was residing there, and appears to have been that way even if he was there on a “tourist visa.” The kid was a natural-born subject.
Coke also made it clear, when he pointed-out that a child born as a “natural born” was such “by nature and birth right” and/or “by procreation and birth right”, that there are TWO ESSENTIAL, REQUIRED qualities that make a “natural born”.
Coke was clear that in his view, the “law of nature” that made a natural born subject was a law laid down by God — if you were born within a kingdom, then by NATURE you were a natural born subject of that particular realm. By nature and birthright.
Now if you say they mean otherwise, then present your case, rather than run away, or attempt to sweep it under the carpet or breeze over it like it doesn’t exist.
I’ve presented the facts. Phrases like “run away,” “sweep it under the carpet,” and “breeze over it like it doesn’t exist” will get you permanently banned, the very next time you use one of them.
As you can see, both in England and US, it was the subject/citizen status of the father that was THE PRIMARY factor to determine “natural born” status of his child.
Actually, there were two factors: place of birth, plus allegiance. And that allegiance could be of any kind. Place of birth plus even the very weakest of allegiances made for a child to be a natural born subject. If the place of birth wasn’t there, then the allegiance had to be much, much stronger.
If you drop your political bias and your agenda to deceive and back-door change the Constitution, you will see that what I have shown you is the truth of the matter.
“Political bias,” “agenda to deceive,” and “back-door change the Constitution” are all phrases that will get you permanently banned the very next time you use one of them, or similar. As I’ve said, I’m not going to put up with your nonsense here.
There is no doubt that the term “natural born” means primarily by NATURAL DESCENT, in English common law AND to Vattel, AND to the Framers of the USC, who were very learned in BOTH English common law AND Vattel AND they had a seriously important imperative to ensure that the office of POTUS was to be secured and protected from any foreign, influence, persuasion, allegiance and claim.
As noted elsewhere, they certainly had that goal. But they manifestly did not intend for that protection from foreign influence to be an absolute one, or they would not have expressly provided that future Presidents could live all but 14 years of their life abroad.
So you have no reply to quote after quote after quote from the supreme court saying you are wrong. How can you? All you can do is insist Minor, which expressly declines to address the status of children of aliens, trumps quote after quote saying the English common law applies. Now you say we haven’t presented evidence that the framers agreed with us when you have produced no such evidence. Of course, we have pointed out that “natural born” as a term did not exist outside the english common law in 1787, that a native birth requirement was all that was discussed in the Convention, that Madison, Kent, Story, Swift, Marshall, Bouvier, Rawle, Dane and every early scholar agreed with us. All you can do is keep insisting that Minor trumps everything. Getting sadder all the time.
Ballantine quoted ….
” ………… the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law,….”
Response:
Show where is it “framed in the language of the English common law”?
Ballantine quoted ………
““and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.”
Response:
All the exceptions who were cited, i.e. “an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born” were NOT “subjects” and THAT is why the children of these people were not “natural born”.
Coke made it clear that to be a “natural born”, one must necessarily be born “under the ligeance of a SUBJECT” and Coke made it clear even further, when he described the TWO ESSENTIAL QUALITIES that were REQUIRED to make a “natural born”, when he described those qualities as “nature and birth right” and again a “procreation and birth right”.
Every time you have been confronted with these facts, you run away or dig-up a smelly pile of error-ridden “legal opinion” that has been itself built upon the same error of not recognizing these clear facts, cherry-picking ‘alien parent = natural born’, without acknowledging the fact that the alien parent was required to be a “subject” for his child to be a “natural born”.
Then you go on about how “subject” and “citizen” are analogous, but when this is applied to US, in light of the “subject” status of the father as being the principal element in making a “natural born”, you can’t bear to face it.
i.e. if “subject” and “citizen” are analogous, and with the English common law requiring a “subject” father as essential in making a “natural born”, then for a child to be a US “natural born”, his father would have to be a “citizen”.
But you don’t want to go there do you, it demolishes your entire absurd, politically motivated and biased, dishonest argument.
Time for you to default to attempts at ridicule, pack-attack, ban the blogger, post a barrage of quotes from other “experts” who either are speaking in such a way that ambiguity can be played with, are just plain in error, followed the leader in error without doing their own research or a politically biased revisionist, or some other agenda driven deceivers…………. and of course the useful idiots who parrot and chant the default mantra of lies.
Let’s see you if you can come clean.
I don’t know whether ballantine is going to respond to this. I’ll respond to some of it, at least.
All the exceptions who were cited, i.e. “an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born” were NOT “subjects” and THAT is why the children of these people were not “natural born”.
Again, it’s clear and explicit that children born on English soil of “aliens in friendship” — who were neither natural-born subjects, naturalized subjects, or even denizens — were natural born English subjects.
If you want to argue that such parents were “subjects,” then they were only so in the sense of being “subject” to the King during their stay in England. That is abundantly clear from Coke’s words in Calvin’s Case.
Coke made it clear that to be a “natural born”, one must necessarily be born “under the ligeance of a SUBJECT”
OR “…under the protection of the King.”
Why do you always clip off that part of the quote?
Oh, wait. I know why .
It’s because aliens on English soil in friendship were there “under the protection of the King.”
So the inconvenient presence of that second clause sinks your point.
Now as far as I can tell, aliens on English soil were not there “under the ligeance of a subject.” But they WERE there “under the protection of the King.”
And that relationship, although only “local” (i.e., holding only while they were on English soil) and temporary (lasting only as long as their stay did) was strong enough that if their children were born during that stay, those children were natural born subjects of England.
smelly pile
error-ridden
error of not recognizing these clear facts
cherry-picking
you can’t bear to face it
you don’t want to go there do you
it demolishes your entire absurd
politically motivated and biased
dishonest argument
attempts at ridicule
pack-attack
ban the blogger
politically biased
revisionist
agenda driven deceivers
useful idiots
parrot and chant
mantra of lies
see you if you can come clean
From now on, any one of those, or anything similar, and you are permanently banned.
…if “subject” and “citizen” are analogous, and with the English common law requiring a “subject” father as essential in making a “natural born”, then for a child to be a US “natural born”, his father would have to be a “citizen”.
This is MichaelN’s great fallacy.
He claims that only the child of a “subject” on English soil was natural born. Then he claims that if “subject” and “citizen” are analogous, it requires a father to be a “citizen” for his child, born on US soil, to be a citizen.
I’ve already answered this flagship fallacy, but I’ll repeat the answer for clarity.
IF it was required for a parent to be a “subject” in order for his child born on English soil to be a natural born subject, then that particular use of that term did not mean much. It only meant that the parent was “subject” to the King during his stay.
It is crystal clear from Calvin’s case that the children of such aliens did not have the status and privilege of any of the following, who were recognized by English law
They were simply aliens on English soil.
As such, they were NOT comparable to citizens.
And yet their children, born while they were there, were clearly natural born subjects, and therefore equal to anyone in the highest category of membership in the nation.
John Woodman said …….
“This is MichaelN’s great fallacy.
He claims that only the child of a “subject” on English soil was natural born. ”
———————————-
Response:
This is a lie.
With regard to English law, only a child born to a “subject” can be a “natural born”, whether born within or without the realm.
With regard to a child born in the realm to an alien-born, visiting in friendship; the child is a “natural born” primarily because his father is a “subject”, because as Coke stated, if the father was not a subject, then the child cannot be a subject.
————————————————
John Woodman said …….
“Then he claims that if “subject” and “citizen” are analogous, it requires a father to be a “citizen” for his child, born on US soil, to be a citizen.”
Response:
This is another lie.
I say that if “subject” and “citizen” are analogous, then to be consistent with the English common law, for a native-born child to be a “natural born”, the father would have to be a “citizen”.
————————————————————
John Woodman said …….
“I’ve already answered this flagship fallacy, but I’ll repeat the answer for clarity.
IF it was required for a parent to be a “subject” in order for his child born on English soil to be a natural born subject, then that particular use of that term did not mean much. It only meant that the parent was “subject” to the King during his stay.”
Response:
Yes, the alien-born, visiting in friendship, was a “subject” by local ligeance.
We are not here to discuss your opinion as to whether the term “did not mean much”.
The point is, that the alien-born father had to be a “subject”, for his child, if born in the realm, to be a “natural born”.
Is that so hard to grasp?
——————————————
John Woodman said …….
“It is crystal clear from Calvin’s case that the children of such aliens did not have the status and privilege of any of the following, who were recognized by English law
natural born subjects — comparable to natural born citizens
naturalized subjects — comparable to naturalized citizens
or denizens — probably comparable to resident aliens with green cards today
They were simply aliens on English soil.
As such, they were NOT comparable to citizens.
And yet their children, born while they were there, were clearly natural born subjects, and therefore equal to anyone in the highest category of membership in the nation.”
Response:
“Crystal clear”???????
You will need to run this last part again, you are not making any sense at all.
Look, I will assume that in your opening sentence, that you are referring to the alien-born fathers, and I am responding on that basis. (otherwise you run it again, and clarify what on earth you are talking about)
Yes an alien-born father was a “subject” because of local ligeance, and he was not privileged with the benefits of the “natural born” the “denizen” or the “legal subjects”.
Still the point is that he was a “subject” and if “subject” is analogous with “citizen”, then in the US, an alien would have to become a “citizen” for his child to be a “natural born”.
An English “natural born” was merely a term that gave rights to inheritance, etc, it was nothing to do with eligibility for a president of a republic, where the citizens are joint sovereigns.
Yes an alien born, visiting England as a friend, is “simply an alien on English soil” who happens to also be a “subject”.
The alien in US, is “simply an alien” on US soil, who is NOT a “citizen”.
Response: This is a lie.
And that’s it.
Michael has been warned repeatedly to knock off the accusing, inflammatory language.
My statement was substantially on target. If he includes children of “subjects” outside of English soil, then a simple clarification would have done. There was no need to make a false accusation of lying.
Michael is now the first and only person ever to be banned from this blog. That was his final post. Let’s wrap up his participation here with a response to it.
With regard to a child born in the realm to an alien-born, visiting in friendship; the child is a “natural born” primarily because his father is a “subject”, because as Coke stated, if the father was not a subject, then the child cannot be a subject.
I actually have seen no statement in Calvin’s Case that “if the father was not a subject, then the child cannot be a subject.” But I’m not going to argue the point. As noted, it was quite enough for an alien to be simply a temporary visitor on English soil. His child born during his stay was a natural born subject of England.
“Then he claims that if “subject” and “citizen” are analogous, it requires a father to be a “citizen” for his child, born on US soil, to be a citizen.”
Response: This is another lie.
I say that if “subject” and “citizen” are analogous, then to be consistent with the English common law, for a native-born child to be a “natural born”, the father would have to be a “citizen”.
Okay, so I should’ve said “natural-born citizen.” I think I do clarify that a bit further down.
Yes, the alien-born, visiting in friendship, was a “subject” by local ligeance.
We are not here to discuss your opinion as to whether the term “did not mean much”.
The point is, that the alien-born father had to be a “subject”, for his child, if born in the realm, to be a “natural born”.
Is that so hard to grasp?
The point is, even the children born in England to a temporary alien visitor — who was just as much a foreigner when he left the country as he had been before he ever entered it — were “natural born subjects” of England.
The direct analogy here is: You simply didn’t have to be anything even remotely resembling a citizen for your children to be “natural born.” You just had to be present on English soil, and not be an ambassador or a member of an occupying army. Whether you were a foreigner or not didn’t matter in the slightest. The precedent is crystal clear, and it was never changed in America.
“Crystal clear”??????? You will need to run this last part again, you are not making any sense at all.
I think it’s pretty clear, for most of us. I will leave it to Michael to reread and ponder it. If anyone else has any questions, let me know.
Yes an alien-born father was a “subject” because of local ligeance, and he was not privileged with the benefits of the “natural born” the “denizen” or the “legal subjects”.
Still the point is that he was a “subject” and if “subject” is analogous with “citizen”, then in the US, an alien would have to become a “citizen” for his child to be a “natural born”.
“Subject” in that sense — if it can really be used in that sense — is only analogous to an “alien granted permission to be in the country.”
So we have the following different kinds of people.
An English “natural born” was merely a term that gave rights to inheritance, etc, it was nothing to do with eligibility for a president of a republic, where the citizens are joint sovereigns.
It doesn’t matter whether or not the English said only natural-born subjects could be chosen as Prime Minister — or King.
What matters is that we said only a natural-born citizen can be President. We chose that particular class of person. And we extended eligibility to run for and be elected to that office to all natural-born citizens who are at least 35 years of age and 14 years resident in the United States.
Of course, actually getting elected is a whole different matter entirely.
Michael asked where is it framed in the Constitution.
Alexander Hamilton told us where to look for definitions of the terms in the Constitution.
“What is the distinction between direct and indirect taxes ? It is a matter of regret that terms so uncertain and vague in so important a point are to be found in the Constitution. We shall seek in vain for any antecedent settled legal meaning to the respective terms—there is none.”
[Skip]
“If the meaning of the word excise is to be sought in the British statutes, it will be found to include the duty on carriages, which is there considered as an excise, and then must necessarily be uniform and liable to apportionment; consequently, not a direct tax.”
“Some argument results from this, though not perhaps a conclusive one: yet where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived. ”
Madison refutes the birther claims.
Jefferson refutes the birther claims.
Hamilton refutes the birther claims.
Oh, and since you mention Jefferson. His citizenship statute from 1783 that remained in place until the civil war:
“Be it therefore enacted by the General Assembly, That all free persons, born within the territory of this commonwealth; all persons not being natives, who have obtained a right to citizenship under the act intituled “An act declaring who shall be deemed citizens of this commonwealth;” and also all children wheresoever born, whose fathers or mothers are or were citizens at the time of the birth of such children, shall be deemed citizens of this commonwealth, until they relinquish that character in manner herein after mentioned;….’
“All free persons, born within the territory of this commonwealth… shall be deemed citizens…” Again, we know you have a reading problem. Is English your first language? You clearly admit you can’t cite any authority to support your naturalization interpretation as there is none.
Yeah, I found that too.
He cites Jefferson. Jefferson pretty much refutes him.
He cites Madison. Madison refutes him.
He cites Ramsay. Ramsay had absolutely nothing to say about children born after the Revolution to immigrant non-citizens, and even so had his doctrine on citizenship slapped down by Madison & Co. in a vote that was 36 to 1.
He cites Jay. Jay underlines “born,” and not “natural,” which wouldn’t really help Apuzzo very much even if Jay had underlined it, since the English common law rule was derived from natural law.
He cites Bingham. Bingham, read in context, pretty much refutes him.
He cites Gordon. Gordon refutes him.
He cites US v Wong Kim Ark. US v Wong Kim Ark refutes him.
He cites Binney. Binney refutes him.
He cites Tucker. Tucker refutes him.
Actually, no. He doesn’t cite Tucker. He claims to have cited Tucker. No quote from Tucker can ever be found. And Apuzzo won’t or can’t produce the supposed quote from Tucker, no matter how many times he’s asked.
But whether he’s been cited or not, Tucker still — at least in regard to children born before the adoption of the Constitution, and nothing seems to have changed with its adoption — refutes him.
Re: “the new game plan is to say that the Court declared him “natural born”
Well, yes, what is wrong with that? Since it was a citizenship case and not an eligibility case, the bottom line was that he was a US citizen. The court also declared that every child born in the USA was Natural Born. Wong Kim Ark was declared to be a citizen and was born in the USA. He, like all the other children born in the USA was natural born. He was both a citizen and Natural Born, in other words, a Natural Born Citizen.
Mario Apuzzo does not recognize this logic however. He believes, although there is no evidence for it, that Wong Kim Ark, a US-born citizen born of foreign parents, was not considered by the court to be Natural Born. Why not? What made Wong Kim Ark and the other US-born children of foreigners not as good as a US-born citizen who had US parents? Apuzzo thinks that the justices in the Wong Kim Ark case must have thought that, though they never said it.
Although millions of US-citizens who have had foreign parents have served their country and been excellent citizens, Apuzzo thinks that they are not as good, not as loyal, as the US-born children of US parents. And because they are not as good, they should not be considered Natural Born. And because he thinks this, he thinks that the US Supreme Court and the writers of the US Constitution must believe it too.
And he believes this despite the fact that they never said it, and that one of the scholars on the Constitution at the time, who knew the writers said:
“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”—William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)
In other words, not only does the US Supreme Court believe that the US-born children of foreigners are just as good as the US-born children of US citizens (though Apuzzo claims that it did not mean this in the Wong Kim Ark decision), but the scholars at the time of the writing of the Constitution who knew the writers of the US Constitution knew that they did too. And Lincoln did too, when he said at Gettysburg that this nation was “dedicated to the proposition that all men are created equal. ” That is also in the Declaration of Independence, and yet Apuzzo says that the men who wrote the Constitution did not really believe it.
Re: “the new game plan is to say that the Court declared him “natural born”
Well, yes, what is wrong with that?
What’s wrong with it, since it’s true?
The Court was led “irresistibly” to the following “conclusion:”
“Every citizen or subject of another country, while domiciled here” has allegiance TO THE UNITED STATES that is [using the words of Lord Coke with the archaic term “subject,” which the same Court told us was “precisely analagous” to “citizen”] — “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject.”
Since Wong Kim Ark was undeniably the child of such persons, the Court undeniably found him to be a “natural born subject” or a “natural born citizen” of the UNITED STATES — whichever term you prefer to use.
WRONG!
The alien father had to be a subject, for his child to be a subject.
If “subject’ and “citizen” are analogous, then the alien parent in the US would have to be a “citizen” for his child if born in US to be a “natural born”.
The child had to be born with TWO essential qualities, i.e. “nature”/”procreation” and “birth right” to be a “natural born”.
That’s why WKA only got “citizen” and not “natural born”, after all the lengthy discussion on the topic of “natural born citizen” it was because his father was not a “citizen”.
And the court also never said that WKA was eligible for the office of POTUS either.
I wonder why?
The alien father had to be a subject, for his child to be a subject. If “subject’ and “citizen” are analogous, then the alien parent in the US would have to be a “citizen” for his child if born in US to be a “natural born”.
Sorry, but this is incorrect.
The word “subject” as in either “natural born subject” or “naturalized subject” (which were two major classes of people under English law) is directly analogous to the word “citizen.”
The extremely limited kind of temporary “subject” or “being subject” that YOU refer to on the part of an alien in friendship on English territory is not at all analogous.
There were four categories of persons under English law:
1) Natural born subjects. Comparable to: Natural born citizens.
2) Naturalized subjects. Comparable to: Naturalized citizens.
3) Denizens. Roughly comparable to: Resident aliens who’ve gotten their green card.
4) Aliens.
Aliens might be on English soil, or they might be present in another country.
If on English soil, they were either “aliens in friendship” or “enemy aliens.”
“Aliens in friendship” could be roughly compared with foreigners present in the United States on a tourist, student or temporary work visa.
And the children born on English soil of “aliens in friendship” — who had none of the rights of natural-born subjects, naturalized subjects, or denizens — were natural born subjects of England.
Lord Coke was crystal clear about that.
The child had to be born with TWO essential qualities, i.e. “nature”/”procreation” and “birth right” to be a “natural born”.
And those two essential qualities — nature and birthright — were there for a child born on English soil, even if his parents did not possess those “two qualities.”
That’s why WKA only got “citizen” and not “natural born”, after all the lengthy discussion on the topic of “natural born citizen” it was because his father was not a “citizen”.
It is really very clear that the US Supreme Court found Wong Kim Ark to be not just a “citizen” but also “natural born.” They therefore found him to be a natural born citizen of the United States.
Refer to the article linked to above. If you have any dispute with those facts, address them directly. Do not attempt to assert again here that the Court did not find Wong to be “natural born” without addressing those arguments.
And the court also never said that WKA was eligible for the office of POTUS either.
The Court mentioned Presidential eligibility in their Opinion, so it’s clear they understood the implications of their “irresistible” “conclusion” that a person in Wong’s exact situation was “natural born.”
And yet Mario routinely, persistently, unrelentingly denies the undeniable.
ballantine,
It is funny that you know so much about the English common law, but you have a serious difficulty reading and understanding the English language.
Jefferson said in his 1779 citizenship law:
“[A]ll white persons born within the territory of this commonwealth . . . and all infants wheresoever born, whose father, if living, or otherwise, whose mother was a citizen at the time of their birth . . . shall be deemed citizens of this commonwealth, until they relinquish that character in manner herein after expressed.”
So, if you were at the time the law went into effect a “white person” who was born in Virginia, you were a citizen of Virginia. But if you were an infant born in Virginia, you became a citizen only if your father was a citizen. So Jefferson grandfathered white adults to be jus soli citizens. But for infants, they had to be born to citizen parents (jus sanguinis). Note that Jefferson did not require in his law that the infants had to be white, for by requiring that they followed the condition of their fathers it was not necessary for him to say so explicitly. Other than the racial element which was later removed from the Virginia citizenship laws, sure sounds like Article II, Section 1, Clause 5, which grandfathered “citizens of the United States” (by jus soli or naturalization) to be eligible to be President and then after the adoption of the Constitution, provided that they had to be “natural born Citizens” (only by jus soli and jus sanguinis combined) in order to be so eligible. Sure also sounds like the Naturalization Acts of 1790, 1795, 1802, and 1855, which provided that a child born in the United States or out of it to alien parents was himself or herself an alien.
What is so hard to undersand about that, Mr. Ballantine?
While I am at it, where is your English common law in the early Congress’s (many of whom were Founders and Framers) and Jefferson’s citizenship laws?
Completely unbelievable.
Here’s the relevant portion of that Act:
Be it enacted by the General Assembly,
or otherwise, whose mother was,
a citizen at the time of their birth,
or otherwise their mother
becoming a citizen,
shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed:
And all others not being citizens of any the United States of America, shall be deemed aliens.
So Jefferson provided for six separate categories of people who would be citizens of the Commonwealth of Virginia:
You show how willing you are to selectively twist the words of our laws by claiming (yet another completely MERITLESS claim on you part) that the first of these categories applies ONLY to people who were already born — and that categories 3, 4, 5, and 6 do not.
There is absolutely nothing in the statute to justify such a reading.
There is no rational conclusion that one can draw other than the one already arrived at, again and again now: that you are simply engaging in deliberate deception.
As for there being a “grandfather clause,” yes, there obviously was. All who had lived in Virginia since May of 1777, no matter what their national origin, and no matter where they were born, were deemed to be citizens of the Commonwealth.
I did not go into the full statute because I was only addressing persons and infants born in Virginia.
But since you want me to show more of how you are wrong, I will do so. You add:
■All infants wheresoever born whose father (if living) or mother would become citizens.
This aspect of the Jefferson law is also found in the Naturalization Acts of 1790, 1795, 1802, and 1855. The importance of what Jefferson wrote is that he explicitly says “wheresoever born” which proves that Congress too, treated children born in or out of the United States equally when they did not have citizen parents. They were aliens in both cases. Congress did, however, allow an alien child to become a “citizen of the United States” when his or her parents naturalized if done during their minority or on their own if done thereafter. This is the same thing that Jefferson did in this part of his law by using the word “infants.”
I did not go into the full statute because I was only addressing persons and infants born in Virginia.
You never go into any context that would shed light on a passage you want to proof-text and make it say what you want it to say.
It is somewhat unfortunate that this statute uses the ambiguous phrasing “wheresoever born,” as that gives you a pretext on which to try and sustain your bogus claims.
Nonetheless, it has already been made clear that ALL WHITE PERSONS born in the territory of the Commonwealth of Virginia are citizens. “All white persons” includes men, women, children, babies, and Siamese twins — just as long as they are white, and just as long as they are persons.
As for the Naturalization Acts, the fact that these Acts stated certain persons born overseas were citizens has no effect whatsoever on the citizenship of persons born in the United States. Persons born in the United States are not even mentioned in the Acts.
Leave it to you to claim that a law that does not in any way mention somebody determines his or her citizenship status.
It’s bogus. Just like ALL of your substantive claims feeding into your Big Lie that it takes two citizen parents to make a natural born citizen are bogus.
In fact, it’s beyond bogus. It’s ridiculous.
To claim that a law that does not MENTION a person determines that person’s citizenship status? Give me a break.
Mario
Actually you are not reading the Virgina law correctly. The law said that any white infant born in Virginia was a Virginia citizen. Anyone born anywhere with a father who is a Virginia citizen (or mother if the father is deceased at the time of birth) was a Virginia citizen. This mirrors the laws for NBC today except that now only one citizen parent is required if born outside of the US (equivalent to outside Virginia in Jefferson’s wording) and the parents are treated as equals for conferring citizenship. The Jefferson reference just further destroys your argument.
Absolutely. All white persons born in the Commonwealth were deemed to be citizens. There was no distinction whatsoever regarding whether their parents were or were not citizens of the Commonwealth. If you were born there, you were a citizen.
As long as you had white skin.
And there was not the faintest distinction whatsoever between native-born citizens who had citizen parents, and native-born citizens who did not.
But MARIO now maintains that the first clause ONLY applied to those who were already born, in spite of the fact that it doesn’t say any such thing, and in spite of the fact that the same status — “BORN” — is applied to persons in three of the other clauses, and in those cases it clearly can NOT mean “already born but not to be born in the future.”
It is therefore clear that “BORN” in clauses 4, 5, and 6 can not possibly mean “already born but not to be born in the future,” because if it does, Virginia would soon run out of citizens.
Yet Mario insists that the same word has one meaning in clauses 4, 5, and 6, and an entirely different meaning in clause 1.
It’s simply — as far as I can tell — a lie. Do you really think Mario doesn’t know any better than that? I don’t.
And it reminds me of what my mother told me when I was growing up: Once you tell a lie, you’ll have to tell more lies to try and cover for the first one. And that is exactly the position that Mario is in.
You said: “But MARIO now maintains that the first clause ONLY applied to those who were already born, in spite of the fact that it doesn’t say any such thing, and in spite of the fact that the same status — “BORN” — is applied to persons in three of the other clauses, and in those cases it clearly can NOT mean “already born but not to be born in the future.”
You need to fine tune your understanding. What I said was that the first clause (just soli) applied only to those already born who were not infants. If one was an infant, then one had to be born to citizen parents, if the father was alive (just jus sanguinis).
Let me ask you something, Mario:
Is an infant a person who has been born?
This isn’t a trick question. It’s a simple yes or no answer.
Where does the first clause say that it only applies to those who “aren’t infants?” It doesn’t.
If it doesn’t say that it only applies to those who “aren’t infants,” then obviously it applies to exactly who it SAYS it applies to:
1779: ALL WHITE PERSONS BORN IN THE COMMONWEALTH.
1783: ALL FREE PERSONS BORN IN THE COMMONWEALTH.
Incidentally, 4 years later, they dropped the “white” requirement, enacting:
Be it therefore enacted by the General Assembly, That
shall be deemed citizens of this Commonwealth, until they relinquish that character in manner herein after mentioned…
And once again we have a similar rule, only now the racial basis has been stripped from it: “That all free persons, born within the territory of this Commonwealth… shall be deemed citizens of this Commonwealth.”
I did not say that an infant could be a Virginia citizen only if born in Virginia. Rather, I am showing that just being born in Virginia did not make an infant a citizen of Virginia. That infant also had to be born to a citizen father (the wife followed the citizenship of the husband) or citizen mother if the father was dead.
The rest of what you said makes no sense.
The rest of what you said makes no sense.
Of course it does. It makes perfect sense.
I really don’t for one moment believe that you don’t understand this stuff. I simply don’t believe that you could possibly be that dense, or that blind, or whatever it takes not to understand the plain language of the law. It’s not rocket science. I have an 11-year-old daughter who can understand what these laws say.
I did not say that an infant could be a Virginia citizen only if born in Virginia.
I never, ever said you did.
Rather, I am showing that just being born in Virginia did not make an infant a citizen of Virginia.
What part of:
1779: Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth… shall be deemed citizens of this commonwealth.
and
1783: Be it therefore enacted by the General Assembly, That all free persons, born within the territory of this Commonwealth… shall be deemed citizens of this Commonwealth.
…do you fail to understand?
John Woodman,
I hope you are not showing your 11-year-old daughter what you write on the blogs.
“[A]ll white persons born within the territory of this commonwealth . . . and all infants wheresoever born, whose father, if living, or otherwise, whose mother was a citizen at the time of their birth . . . shall be deemed citizens of this commonwealth, until they relinquish that character in manner herein after expressed.”
What part of “white person” and “infants” do you not understand? Do you not undertand that if one is an infant, then one has to satisfy the requirement for infants? You really are making a fool of yourself.
Mario,
Surely you can’t possibly be as incapable of understanding plain English as you’re portraying yourself as being.
If you were Chelsea of the miles-per-hour video, I would believe you. But a lawyer? I just can’t believe it.
Surely I don’t have to spell it out for you as I would have to spell it out to my 8-year-old. But I will.
It is 1781 in Virginia, and we have two families. Both are white.
The first one is James, Anna, and Elizabeth. The second family is Olaf, Helga, and Johanna.
James and Anna were born in Virginia and have lived there their entire lives. Olaf and Helga moved to Virginia from Sweden six months ago and have not taken the oath, so they are not citizens of the Commonwealth of Virginia.
It is clear that James and Anna are both citizens of the Commonwealth of Virginia, and Olaf and Helga are not.
We can test whether Olaf is a citizen of the Commonwealth of Virginia.
Is he a white person born in the Commonwealth? No.
Has he lived there since May 1777? No.
Has he gone before a court and given assurance of his fidelity in order to become a citizen? No.
Is he an infant, wheresoever born, whose… well, we can stop right there. No.
Is he an infant, wheresoever born… again, we can stop right there. No.
Is he an infant — and finally, we can stop right there again. No.
We are at the bottom of our list. Olaf has failed to qualify. He is not a citizen of the Commonwealth of Virginia.
Elizabeth was born in the Commonwealth 3 months ago, of citizen parents. Is she a citizen? Let’s go through the list and see if she qualifies.
Is she a white person born on the territory of the Commonwealth? Yes. Therefore, Elizabeth is a citizen of the Commonwealth of Virginia. We have been told that explicitly, and we need go no further.
Now let’s apply the test to Johanna. She, like Elizabeth, was born in the Commonwealth of Virginia 3 months ago. In fact, they were born on the same day, in the same town, so their moms have been swapping off on baby-sitting. But unlike Elizabeth, Johanna’s parents are not citizens.
Let’s apply the tests to Johanna and see whether she is a citizen.
Is she a white person born in the territory of the Commonwealth of Virginia. YES. Therefore, according to the law, SHE IS A CITIZEN OF THE COMMONWEALTH OF VIRGINIA. We need go no further. She has already qualified.
We are told quite explicitly that ALL WHITE PERSONS who are born within the territory of the Commonwealth, are citizens. That’s it. It’s over.
If you truly cannot understand a statute as clearly worded as that one, I cannot understand how you have made a living as a lawyer.
Mr. Woodman,
You have got to be kidding me. Take my same advice regarding your 8-year-old.
You cannot just take the parts of a statute that serves your purpose and close your eyes to the other parts of the same statute that does not serve that purpose.
Let us now correctly apply Jefferson’s 1779 citizenship law to your facts:
Is Johanna a white person? Yes
Was Johanna born in Virginia? Yes
BUT, is Johanna an infant[] wheresoever born”? Yes
Does Johanna have a father who is alive? Yes
Does Johanna have a father who was a citizen at the time of her birth? No
Failing this last requirement, Johanna is not a citizen of Virginia.
I cannot make it more easy for you to understand.
Mario,
Where in the statute does it say that any clause DISQUALIFIES any person from being a citizen?
Where in the statute does it say, “If a person fails to meet ALL of the following relevant criteria, he or she is not a citizen?”
It doesn’t.
There is not one single word that serves to actively DISQUALIFY a person from citizenship.
Instead, we have a series of six clauses. Any one of these six clauses can serve to establish that a person is a citizen.
Johanna is clearly a citizen by the first clause. And that is EXPLICIT.
ALL WHITE PERSONS born in the territory of the Commonwealth of Virginia are citizens. Period. That’s it.
NOWHERE does it state, “unless such person shall fail to meet one of the following tests.”
NOWHERE does it state, “Notwithstanding the above, no person shall be a citizen who…”
The statute you WANT this to be would read something like,
“All persons born in the territory of the Commonwealth of Virginia are citizens. Notwithstanding the above, no infant whose father is not a citizen shall be a citizen of this Commonwealth.”
If this is truly your level of comprehension of the law, I feel for your clients.
Mario
You really do not understand do you? That is quite amazing. I see why you can’t understand Minor v Happersett and Wong Kim Ark now.
I still can’t believe that Mario doesn’t understand. And I mean that literally. I still do not find it credible, although I must confess it’s seeming more possible than it did.
Mario is simply lying or can’t read English. The statute from 1783, the statute in place when the Constitution was enacted, is plain as can be:
“Be it therefore enacted by the General Assembly, That all free persons, born within the territory of this commonwealth; all persons not being natives, who have obtained a right to citizenship under the act intituled “An act declaring who shall be deemed citizens of this commonwealth;” and also all children wheresoever born, whose fathers or mothers are or were citizens at the time of the birth of such children, shall be deemed citizens of this commonwealth, until they relinquish that character in manner herein after mentioned;….’
Three different ways to be a citizen and the third prong has nothing to do with the first prong. The language of the first prong is clear and unambiguous. “That all free persons, born within the territory of this commonwealth……shall be deemed citizens.” One does not get to change the tense and meaning of the first clause. Unambiguously states birth in Virginia is sufficient. I guess Mario doesn’t understand semi-colons means the clauses are indepdendant. The statute makes perfect sense as it codifes English law at the time. Starting to think someone is really wrong with Mario if he can’t understand basic English.
Reality Check and John Woodman,
Why do you not state your point and we will see if I understand it.
The truth of the matter is that you both do not have any point that makes any sense in light of what Jefferson wrote into his citizenship laws.
I think I’ve stated it about as clearly and simply as it can be stated.
I’m sure my 11-year-old, reading this, could understand the arguments and see why your claim is totally cracked. And I’m sure that even the 8-year-old, with some additional explanation, could get it as well.
Maybe you need to read back through it a few times. Or get a family member to explain it to you.
The 1783 Act is even more explicit, using the words AND ALSO:
Be it therefore enacted by the General Assembly, That
shall be deemed citizens of this Commonwealth, until they relinquish that character in manner herein after mentioned…
This makes it ABUNDANTLY CLEAR that those who qualify as citizens because they are “children, wheresoever born, whose fathers or mothers are or were citizens at the time of the birth of such children,” are IN ADDITION TO all persons who qualify under the first clause.
Which, again, includes:
all free persons, born within the territory of this Commonwealth.
Therefore it is ABUNDANTLY CLEAR that the newborn children who have to qualify under the “wheresoever born” clause are ONLY those children born outside of Virginia, as all those children born INSIDE the Commonwealth have already qualified under the first clause, AND THE SECOND GROUP OF PEOPLE IS AN ADDITION TO THE FIRST GROUP.
The 1779 law says “and all infants.” But it does not matter. Jefferson was only listing all the separate factual scenarios and he would have joined them all with “and.” But the “and” does not support your argument. The statute still has to be read as a whole and a set of facts can apply to any element of the statute. So, if one is both a “white person” and an “infant[],” then the rules that apply to both classes of people must be followed. In other words, an “infant” is an “infant” and there is no escaping that reality as you would like to do.
Finally, do you really think that Jefferson would have said “wheresoever born” if he meant to include in his jus sanguinis rule only infants born out of Virginia? He could have easily said born out of Virginia. But he did not because he meant exactly what he wrote, “wheresoever born,” which included births in Virginia and out of it.
On the contrary, “and” DOES support the argument.
It makes clear that
Group A
AND Group B,
AND Group C,
AND Group D,
AND Group E,
AND Group F,
are citizens of the Commonwealth of Virginia.
It’s a pretty darn simple construction, Mario.
And it’s made even MORE plain and undeniably clear in the 1783 statute, which emphasizes the additive nature of these clauses by saying, “AND ALSO:”
Group A,
and Group B,
AND ALSO Group C
are citizens.
That’s plain English, Mario. And you have just gone on the record for the entire world showing clearly that you’re prepared to twist plain English until it breaks in order to try and sustain a claim on your part that is NOT in accord with what the law actually says.
That being the case, who on the entire planet should trust anything you say?
Finally, as I noted, it’s a bit unfortunate that Jefferson used an ambiguous phrase — “wheresoever born” that gives you a bit of wiggle room to try and sustain your bogus claims.
But guess where that phrase — as far as everything I can tell — comes from?
It comes from the English law.
In the law of England, the children of the King — wheresoever born — had full rights and were able to inherit property in England.
It didn’t matter that the son of the King was born in Italy. He had full rights as a citizen in England — along with all children born, of parents who were either subjects OR aliens, on English soil.
What Jefferson then appears to have been implying was that the Commonwealth of Virginia was extending to its citizens the same privilege as England extended to its royalty — that their children — “wheresoever born” — were equal citizens with all those born on the soil.
Why focus on the 1779 Statute when the 1783 was the language in place when the Constitution was enacted. Because there is no way any honest person could dispute what the 1783 Act says. And the “wheresoever born” language comes from English naturaliztion statutes for the foreign born which obviously didn’t affect the status of the native born. Duh. You simply cannot admit you are wrong even when the language is clear as can be. Pathetic.
Ballantine — do you have reference to such naturalization statutes? Because from where I’m sitting, it appears to come from the English law that stated the children of the King, “wheresoever born,” could inherit property in England.
That thus gave children born of the King overseas the same right to inheritance as the children of both subjects and aliens born on English soil.
Although it was a bit more complicated than that. At one point it took a law to allow the children born of aliens on English soil to be able to inherit from their parents. The problem wasn’t that the children couldn’t inherit. It was that their parents, being aliens, couldn’t pass property on to be inherited.
ballantine,
If you only read the statute you would know that Jefferson used the word “wheresoever” twice. Here is the full text:
A Bill Declaring Who Shall Be Deemed Citizens of This Commonwealth:
May 1779 Papers 2:476–78
Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed: And all others not being citizens of any the United States of America, shall be deemed aliens…. And in order to preserve to the citizens of this commonwealth, that natural right, which all men have of relinquishing the country, in which birth, or other accident may have thrown them, and, seeking subsistance and happiness wheresoever they may be able, or may hope to find them: And to declare unequivocably what circumstances shall be deemed evidence of an intention in any citizen to exercise that right, it is enacted and declared, that whensoever any citizen of this commonwealth, shall by word of mouth …openly declare to the same court, that he relinquishes the character of a citizen,…such person shall be considered as having exercised his natural right of expatriating himself, and shall be deemed no citizen of this commonwealth from the time of his departure. The free white inhabitants of every of the states, parties to the American confederation, paupers, vagabonds and fugitives from justice excepted, shall be intitled to all rights, privileges, and immunities of free citizens in this commonwealth, and shall have free egress, and regress, to and from the same, and shall enjoy therein, all the privileges of trade, and commerce, subject to the same duties, impositions and restrictions as the citizens of this commonwealth….
Are you going to tell me that when Jefferson said “seeking subsistance and happiness wheresoever they may be able, or may hope to find them,” that meant only out of Virginia?
Try again, ballantine.
P.S. Don’t you just love how Jefferson affirms the natural right to expatriate which existed in the law of nations but not in the English common law.
Again, why the focus of the 1779 statute which is somewhat unclear and not the 1783 statute which is clear as can be and was the language in place with the Constitution was enacted. If you cannot admit the 1783 statute containe jus soli, then there is something wrong with you.
That is a good point, ballantine. Either Mario’s warped reading of the 1779 law is correct, and it is not, meaning the the VA legislature changed its mind significantly in 1783 on who was a citizen at birth without fanfare or they were just clarifying what they had already enacted. The latter is correct.
I really want to think that Mario is honest but wrong because of confirmation bias but this discussion of the Virginia citizenship laws is pushing me into the “he’s just dishonest” camp.
We know that the 1779 statute was written by Thomas Jefferson. We don’t know that for the 1783 one.
In any event, it doesn’t matter which version of Virginia citizenship law you pick. Mario’s interpretation, reading the statute in plain English, can’t possibly be true. See my post below.
You just can’t get there from the words of the statute. The meaning of “and” involves adding one thing to another.
We’ll see whether Mario steps up to the plate and admits he’s been wrong about this law.
If he doesn’t, then I personally think it confirms the hypothesis that he’s just lying, or pathologically incapable of admitting he’s wrong, or something of that nature.
The more I deal with him, the more I kind of start to wonder whether something is pathological here.
Mario’s linguistic dishonesty has been going on for a long time. At one point, he claimed that the following phrase meant children of foreign subjects born in the US:
“Indians born within the territorial limits of the United States…. are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government..”
I know. Absurd. He also aruged the the term “citizen” meant “naturalized citizen” because he said so even though such made no sense. He claimed citizens by birth under the 14th amendment were naturalized even though the Amendment by its terms distinguishes between citizens by birth and by naturalization. The list goes on and on.
Take a look at his argument from yesterday. Justice Story decided two opinions on the same day. In Inglis, he wrote a great length about how we adopted the English common law and hence anyone born after Independance within the rule of Calvin’s Case was a citizen at birth. In Shanks, he pointed out he did not need to deal with the subject in detail after the elaborate opinions in Inglis. Shanks was about whether a woman born a British subject changed nationality during the war. It said she had a right to election but, if too young, would follow the election of the father. Obviosuly such rule has no application for people born after the revolution and the court says nothing about people born under the normal circumstances of the common law. So, of course, Mario says Story did some soul searching and found the errors of his way in Shanks and we can ignore Inglis. This on decisions decided ON THE SAME DAY. Duh. Worse, Story clearly says to look to Inglis for the full explanation of the law, not Shanks. Seriously, what kind of person would claim Story did soul searching based upon no evidence and, in fact, is contrary to Story’s own words. It really appears he will say pretty much anything to desparately support his lame thesis.
There are one or two minor points I might disagree with you on — mostly just the clarity of whether the one claim can immediately be seen to be absurd — but I find the major thrust of what you’re saying here entirely on target, as usual.
“Indians born within the territorial limits of the United States…. are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government..”
I had to actually read that a couple of times before I understood what it was saying. To make it more concrete, we could say:
“Indians born within the territorial limits of the United States…. are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of France born in France.”
The list goes on and on.
The list does go on and on.
Mario says Story did some soul searching and found the errors of his way in Shanks and we can ignore Inglis. This on decisions decided ON THE SAME DAY. Duh. Worse, Story clearly says to look to Inglis for the full explanation of the law, not Shanks.
Mario finds your (non-birther) understanding of Inglis and Shanks “hilarious.” He has used this word before to describe an accurate representation of history and law.
It really appears he will say pretty much anything to desparately support his lame thesis.
I would have to agree.
Well, what else can he say when he claims without evidence that Story found the error of his ways on opinions written on the same day in order to argue we should ignore the opinion he doesn’t like. Again, why would anyone say such a thing without evidence to support it.
And, I rally don’t see how any interpretation of plain english could read “the children of subjects of any foreign government born within the domain of that government” to not be talking about the domain a foreign government. “That government” is obviosuly referring to the “foreign government” immediately preceding it in the same sentence by the common rules of English. This is made clearer since Jutice Gary was making the point that indians were deemed to be born in a quisi-foreign nation, rather than the United States, the whole point of the decision.
At first blush, it looks like “that government” could possibly refer to the United States. But I agree. It doesn’t.
It’s just another example of Mario twisting language to make it say what he wants it to say.
Simply stated, if Mario can’t admit “That all free persons, born within the territory of this commonwealth……shall be deemed citizens” means all persons born in Virginia are citizens, he is lying and showing he is willing to re-write plain English in order to try to win a point. He of course does the same thing with Wong Kim Ark and Minor. But here the lying is so clear everyone can see. There is no rule of stautory construction that allows re-writing the tense of a clause set of by semi-colons from two other independant clauses bestowing citizenship.
Or, to put it in simpler language:
Claiming that “All white persons born within the territory ”
means
“All white persons who are already born when this law was passed, but none who will be born in the future, within this territory”
is lying.
This is especially true when the exact same word — “born” — is used in a way a couple of lines down, that cannot possibly mean Apuzzo’s claimed meaning without Virginia running out of citizens completely within a generation.
John Woodman,
You said: “Claiming that ‘All white persons born within the territory’ means ‘All white persons who are already born when this law was passed, but none who will be born in the future, within this territory’ is lying.”
Boy are you terribly confused. Anyone born in the future would necessarily be an infant when born. In such case, Jefferson’s requirements that applied to infants (jus sanguinis) would then necessarily apply.
I do not think you even know what you are arguing anymore.
YOU are the one who claims that
“All white persons born within the territory of this commonwealth… shall be deemed citizens of this commonwealth”
doesn’t mean what it plainly says.
Whether you get there by claiming that that phrase applied ONLY to those who were already born — AS YOU DID, AT FIRST —
Or whether you get there by claiming, well, okay, yeah, it does include people born in the future, but now they’re subject to a NONEXISTENT RESTRICTION because after they’re born they’re going to be infants —
either interpretation — and yes, your story HAS shifted under questioning — is completely bogus.
My “story” has only shifted in your mind because you did not understand my point to begin with.
So now that you understand it, you have nothing to say.
Rereading your initial post on the matter, you could be correct in that you have been consistent in this particular claim.
It’s kind of hard to tell, though. Perhaps you did not explain your position very well.
And the thing is so darn convoluted as to be entirely repulsive — as against the simple and readily understandable wording of the statute itself.
So let’s go over your claim.
The Virginia statute says that “All white persons born in the territory of this Commonwealth… shall be deemed to be citizens of this Commonwealth.”
Ahhhh… but that’s not what it means, according to Mr. Apuzzo.
What it means, according to Mr. Apuzzo, is that all white persons who are already born at the time this law is passed will be deemed to be citizens of this Commonwealth.
As for those who are born after this law is passed, well… I guess they’re citizens of the Commonwealth when they’re born, because that’s what the statute says, but as soon as they’re born, then they become infants.
And because the statute LATER says:
AND all infants, wheresoever born, shall be deemed to be citizens IF they meet certain conditions,
then anybody who becomes an INFANT in the Commonwealth of Virginia is subjected to those conditions as a RESTRICTION, and are NOT citizens UNLESS they meet those conditions.
Even though NOTHING in the law says anything about a restriction of any kind.
And even though the “and” makes it clear that these citizens are being ADDED to the citizens who got there by being born in the territory of Virginia.
Gosh, that’s twisted. Wow. My hat is off to you, sir. You are a word twister extraordinaire.
To this mangled, bloody interpretation, I suggest we apply the plain-English test I have proposed elsewhere that we apply to the brutal and senseless violence you have done to Minor v Happersett.
I suggest we make a copy of the statute, go to a good university, and find 50 — no, make it a hundred — of the brightest students in the Honors English classes. Make sure they are all “A” students, and that none of them know or care about the political consequences of any interpretation of the statute.
Then have them write an essay on what it means. Or, simply give the scenario I outlined above, and have them specify which of the persons mentioned — James, Anna, Elizabeth, Olaf, Helga, and Johanna — are citizens.
I’d be willing to bet money that you wouldn’t find a single really good English student out of 100 that would write an essay stating that the statute means that all persons born in Virginia are citizens — except that if they’re born after the law is passed, they also have to have citizen parents, or they aren’t.
And why WON’T you find people giving the statute that interpretation? Once again, the answer is stunningly simple.
Because that’s not what it says.
Okay, now we have a clear explanation of Mario’s claim regarding Jefferson’s citizenship Virginia law.
His claim is that citizenship that is apparently extended in law to “ALL WHITE PERSONS BORN IN THE TERRITORY OF THIS COMMONWEALTH” was taken away from all infants in the following clauses…
…unless they had parents who were citizens at birth, or who became citizens, or had no parents at all.
The claim is completely false.
Here’s the relevant portion of that Act again:
Be it enacted by the General Assembly,
or otherwise, whose mother was,
a citizen at the time of their birth,
or otherwise their mother
becoming a citizen,
shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed:
And all others not being citizens of any the United States of America, shall be deemed aliens.
“And” means “AND.” It means “in addition to.” It means “plus.”
We have several different groups here. Six of them, in fact.
Again, they are:
Although in the law, all of the “infants wheresoever born” are combined into a single group, so we really have four groups, linked by the “ands.”
We could call them Group A, Group B, Group C, and Group D.
And the law says:
Group A
AND Group B
AND Group C
AND Group D
shall be deemed citizens of the Commonwealth of Virginia.
This means:
Everybody in Group A,
PLUS everybody in Group B,
PLUS everybody in Group C,
PLUS everybody in Group D,
shall be deemed citizens of the Commonwealth of Virginia.
And there’s no way around this. This is the plain English of the law.
Mario can only evade this if he can somehow alter the meaning of the word “and.”
Besides that, the additive nature is made even more explicit in the 1783 law, which says specifically, “AND ALSO” when it mentions the children.
So the legislative intent was CLEARLY additive and NOT to restrict a previously-mentioned category.
But we don’t actually need the even more explicit term “and also.”
“And” means “and.” It means one thing plus another.
And when a law says “Group A and Group B and Group C and Group D shall be deemed citizens, that’s exactly what it means.
And Mario cannot change its meaning.
Another meritless Apuzzo claim has been shown to be false.
“All white persons born in the territory of this Commonwealth… shall be deemed to be citizens of this Commonwealth.”
For the statement to convey Mario’s interpretation, it would have said something like “All white persons born [as of this time] in the territory of this Commonwealth… [are] deemed to be citizens of this Commonwealth.” But no. It said, with clarifying remarks, “All white persons born [in future] in the territory of this Commonwealth… shall [in future] be deemed to be citizens of this Commonwealth.”
Crystal clear. Unless you are a snake-oil salesman, a demagogue, telling things he knows to be lies to people he knows to be idiots.
So… does the Constitution have layers, then? O_O
Will the real frank arduini please stand up?
John Woodman,
You said: “His claim is that citizenship that is apparently extended in law to “ALL WHITE PERSONS BORN IN THE TERRITORY OF THIS COMMONWEALTH” was taken away from all infants, unless they had citizen parents.”
This is not totally correct because citizenship was not taken away from the infant. Rather, the infant was not given the right to inherit it unless he or she had citizen parents. I also add the following for further understanding:
(1) If one was not an “infant” when the law went into effect, then one could benefit from the “all white persons” jus soli rule. But if one was an “infant” in being or one became an “infant” in the future, one could not benefit from jus soli, for one then had to comply with the jus sanguinis requirements that applied to infants, i.e., had to be born to a “citizen” father, if living, or if not, then to a “citizen” mother. Also, being born to a “citizen” father, because of unity of citizenship of husband and wife, meant born to a father and mother who were both “citizens.” Removing the reference to “white” or “free” which Jefferson must have added because of the unfortunate institution of slavery which prevailed in the colonies and which the new America had inherited from the colonial past (“white persons” was replace with “free persons” by the 1783 law), this is the same rule that Vattel expressed in The Law of Nations, which was adopted by early Congress and the U.S. Supreme Court when defining an Article II “natural born Citizen.” This rule can be found in Vattel’s Section 212 (“The country of the fathers is therefore that of the children”), 213 (“Their chidren follow the condition of their fathers”), 215 (“By the law of nature alone, children follow the condition of their fathers, and and enter into all their rights,” subject to positive laws stating otherwise), 216 (“[N]aturally, it is our extraction, not the place of our birth that gives us rights”), 219 (“[A] man’s country is the place where, at the time of his birth, his parents had their settlement, or it is the state of which his father was then a member”), 220 (children “have a right to enter into the society of which their fathers were members”). See also Minor v. Happersett (1875) and U.S. v. Wong Kim Ark (1898) (both confirmed that a “natural-born citizen” is a child born in a country to parents who are citizens of that country). Note that Article II, Section 1, Clause 5 also included a grandfather clause (that temporarily allowed “citizens” to be eligible to be President) as did Jefferson’s citizenship law for Virginia (that temporarily allowed for jus soli citizenship in Virginia). Note that David Ramsay and St. George Tucker expressed the same rule for citizenship in the new republic. Under the English common law, a child born in the King’s dominions did not follow the condition of his parents. Rather, he or she became a subject of the King for life, regardless of the parent’s allegiance. Hence, we did not follow the English common law rule.
(2) Jefferson also added that “All infants wheresoever born whose father (if living) or mother would become citizens” also became “citizens.” This rule again expressed the principle that children followed the condition of their parents. This rule was added in the Naturalization Acts of 1790, 1795, 1802, and 1855, wherein Congress said “And the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the tim of such naturalization, shall also be considered as citizens of the United States.” So what Congress said is that children born anywhere to alien parents but “dwelling within the United States” “shall be considered as citizens of the United States” the moment his or her parents became naturalized. Congress did not considere the child’s place of birth controlling. Rather, what is saw as controlling was the citizenship of the child’s parents. Again, this rule is consistent with Vattel’s explanation that children followed the condition of their parents. See No. (1) above for the sections at which Vattel expressed this rule. Under the English common law, a child born in the King’s dominions did not follow the condition of his parents. Rather, he or she became a subject of the King for life, regardless of the parent’s allegiance. Hence, we did not follow the English common law rule.
(3) Jefferson also allowed to be “citizens” “All infants who should migrate into the Commonwealth without father or mother.” Congress recognized this rule when it allowed a “foundling” to become a “citizen of the United States.” See 8 U.S.C. Sec. 1401(f).
(4) Finally, Jefferson also added that person’s had the natural right to expatriate when reaching the age of majority. The Founders and Framers were very adamant about a person having the natural right to expatriate. It was expressly recognized by Congress in the Expatriation Act of 1868. And this expatriation rule can also be found in Vattel’s Section 212 (“We shall soon see, whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born”) 220-233 (“But every man is born free; and the son of a citizen, when come to the years of discretion, may examine whether it be convenient for him to join the society for which he was destined by his birth”). The natural right of expatriation was not recognized by the English common law. Hence, we did not follow the English common law rule.
This is not totally correct because citizenship was not taken away from the infant. Rather, the infant was not given the right to inherit it unless he or she had citizen parents. I also add the following for further understanding:
I understood you well enough. I figured that was about how you yourself would characterize your position.
As noted in the exact post that you read and responded to, though, there’s just one teeny weeny little problem.
That’s not what the law says.
As far as having the right to expatriate, certainly the Founding Fathers believed in that principle, so they rejected the one specific point of the English common law that held that once one was born a subject of the Crown, one was always a subject of the Crown.
But there’s no sign whatsoever that they threw the baby out with the bath water.
“so they rejected the one specific point of the English common law”
And when they rejected it, they made sure that everyone knew that they were changing it.
Mario would have us believe that they changed the meaning of “natural born” but didn’t write the new definition down, anywhere.
As Justice Scalia said,
“It is apparent from all this that the traditional English understanding of executive power, or, to be more precise, royal prerogatives, was fairly well known to the founding generation, since they appear repeatedly in the text of the Constitution in formulations very similar to those found in Blackstone. It can further be argued that when those prerogatives were to be reallocated in whole or part to other branches of government, or were to be limited in some other way, the Constitution generally did so expressly. One could reasonably infer, therefore, that what was not expressly reassigned would–at least absent patent incompatibility with republican principles–remain with the executive…”
John is correct that the abandonment of the notion of perpetual allegiance didn’t mean the common law jus soli rule was abandoned. The question of one’s initial allgiance and whether such allegiance can be changed are two separate questions. England would eventually recogize the right to expartriation and keep the rest of the common law jus soli rule as clearly one has nothing to do with the other. The US didn’t formally adopt the right to expatriation until 1868. Before that there was much debate on the subject in the US and with England. England had maintained the doctrine of perpetual allegiance because it didn’t think it could maintain its navy if impressed sailors could expatriate. There were similar fears in the US with respect to military obligations. However, no proponant of expatriation in the US suggested the right to expatriation changed the rule regarding birthright citizenship. Madison said the right to expatriation was unclear, but we know he clearly endorsed the English rule of allegience to one’s place of birth. The same with Kent who thought the right of expatriation unclear but obviously endorsed the English view of citizenship. Attorney General Black said we adopted the right of expatriation but also said we followed jus soli for children of foreign subjects.
No one in the debates of the expatriation act suggested we adopted a rule requiring citizen parents and dozens of members of such congress are on record supporting birthright citizenship in the debates on the 14th Amendment. In fact, most of the debates on the expatriation act were on the US providing the same protection against claims of foreign allegiance to naturalized citizens as we always had to citizens born in the US. The expatriation act came about after a congressional report showed that most of our naturalized and many of our native born citizens were foreign subjects under European law as such nations extended citizenship for multiple generations. Congress adopted the act to proclaim our citizens owed allegiance only to the US by making clear we would not recognize, and would protect our citizens, against foreign claims of allegaince, or more accurately, we would protect of naturalized citizens from such claims the way we always had protected our native born citizens. Such act would result in England establishing a Royal Commission on the subject that would lead to England recognizing the right to expatriation. The Royal Commission report is here:
http://books.google.com/books?id=BlEPAQAAMAAJ&pg=PA140&lpg=PA140&dq=royal+commission+on+allegiance+and+naturalization&source=bl&ots=UlTZjKU28s&sig=B_eJ4OZ0MSFoKdd3vT8BRbAfVw0&hl=en&sa=X&ei=y1aZT9PgLeeJ6AHnptDoBg&ved=0CD8Q6AEwBQ#v=onepage&q=royal%20commission%20on%20allegiance%20and%20naturalization&f=false
The report is full of interersting information including a review of US citizenship law. Of course, the idiot commissioners, the leading legal minds of England, get it all wrong thinking that our law was the same as theirs.
Did you get my email? I’ve volunteered you for the hot seat, over here.
Woodman: “Lutz’s research shows clearly that for every one time the Founding Fathers quoted Vattel, they quoted Blackstone, the authority on the common law, a whopping sixteen times.”
I see you’re still using that fallible chart.
Dr. Donald Lutz is Professor of Political Science at the University of Houston. As far as I’m aware, not one single word of Dr. Lutz’s research has ever been shown to be invalid.
Your comment serves only to illustrate what liars and slanderers of decent people the increasingly few remaining birthers are, and that nobody who even inadvertently gets in the way of their goal of somehow finding Barack Obama ineligible, no matter whether he is or isn’t, will be spared from their ugly words.
Mario: “We know from the historical evidence from the Founding that while the English common law continued to have a limited application in some states until abrogated by state legislatures, that law had no application on the national level or to provide the rules of decision for defining national citizenship. See letter of 1787 from Madison to Washington in which he states the English common law was not incorporated into the Constitution; See also Federalist No. 42 in which Madison states that the English common law was a “dishonorable and illegitimate guide” for defining the meaning of piracies and felonies in Article I, Section 8, Clause 10; George Mason (in 1788 during the Virginia ratifying convention said “The common law of England is not the common law of these states”); James Wilson (in 1791 in defining citizenship told us that a citizen did not have the same meaning as a “natural born subject” and a citizen could come into being if not the child of a citizen by naturalization, or if the child of a citizen just by reaching the age of majority). In fact, as I have explained numerous times, the English common law was abrogated on the national level as providing the rules for defining citizenship implicitly by the Declaration of Independence and the Constitution and explicitly by the Naturalization Acts of 1790, 1795, 1802, and 1855.”
[letter of 1787 from Madison to Washington in which he states the English common law was not incorporated into the Constitution]
Was Madison known as the father of the Constitution?
That should settle it.
Of course the English common law was not incorporated into the Constitution. Nobody has ever contended that it was.
But as both Alexander Hamilton and our Supreme Court have stated, the Constitution was framed in the legal terminology of the English common law, as that was the language that the Framers — almost 2/3rds of whom were lawyers — spoke.
“But how is the meaning of the Constitution to be determined? …where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived.”
— Alexander Hamilton
As far as James Madison goes, he stated that there were two kinds of allegiance that make for citizenship: place of birth, and parentage. He stated that of the two, place of birth was the more reliable, and it was what applied in the United States.
And Apuzzo’s claim that the Naturalization Acts “abrogated” a matter on which they did not speak is absolutely false; and his claim that they “told us that a child born in the U.S. to alien parents was not even a ‘citizen'” is simply a bald-faced lie.
Madison’s letter to Washington was in response to Col. Mason’s refusal to sign the Constitution and his campaign against its ratification.
Col. Mason wrote on October 7th, 1787:
“There is no declaration of rights: and the laws of the general government being paramount to the laws and constitutions of the several states, the declarations of rights, in the separate states, are no security. Nor are the people secured even in the enjoyment of the benefit of the common law, which stands here upon no other foundation than its having been adopted by the respective acts forming the constitutions of the several states.”
Madison’s letter of October 18th, 1787 to Washington is his response to Mason’s objections. And he specifically explains why the Constitution did not include a statement about the Common law
http://www.virginiamemory.com/docs/JMtoGW.pdf
“What can he mean by saying that the Common law is not secured by the new Constitution, though it has been adopted by the State Constitutions….What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution.”
A more complete response to Col Mason came from future Supreme Court Justice James Iredell,
“As to the common law, it is difficult to know what is meant by that part of the objection. So far as the people are now entitled to the benefit of the common law, they certainly will have a right to enjoy it under the new Constitution until altered by the general legislature, which even in this point has some cardinal limits assigned to it. What are most acts of Assembly but a deviation in some degree from the principles of the common law? The people are expressly secured (contrary to Mr. Mason’s wishes) against ex post facto laws; so that the tenure of any property at any time held under the principles of the common law, cannot be altered by any future act of the general legislature. The principles of the common law, as they now apply, must surely always hereafter apply, except in those particulars in which express authority is given by this constitution; in no other particulars can the Congress have authority to change it, and I believe it cannot be shown that any one power of this kind given is unnecessarily given, or that the power would answer its proper purpose if the legislature was restricted from any innovations on the principles of the common law, which would not in all cases suit the vast variety of incidents that might arise out it.”
Mr. Woodman,
Lest I be accused of being a troll let me state outright that I am a staunch conservative, anti-Romney but more so anti-Obama. I am however disgusted with the birther movement because I believe that IF Obama was born in Hawaii he is a natural born citizen. I belong to a conservative website (Free Republic) and we are pretty much split down the middle regarding this issue of NBC. We go very hot and heavy on the issue. One of the birther protagonists posted the following reference claiming it supported their side.
http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11%20
This reference is a statement made by Senator Jacob Howard, co-author of the citizenship clause of the 14th Amendment, 1866.
center column halfway down and this is what it says
“Every Person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”
For the life of me I cannot read this in a way that would support their side. It seems very clear that the ONLY exclusion to NBC is a baby born to ambassadors or foreign ministers. It also seems that birthers are incapable of comprehension. I would appreciate your thoughts on this.
My thoughts are that you are absolutely, totally, 100% correct in your understanding of what Senator Jacob Howard was saying.
I actually have a draft article on Senator Howard that I’ve never managed to get beyond the draft stage at this point.
I invested the time to go through the entire Congressional debates on the Civil Rights Act of 1866 and the Fourteenth Amendment. This was an enormous investment of time.
It is crystal clear to me that not once in the entire debates did anybody ever contend that children of white people, at least, born on US soil of non-citizen parents, were anything other than natural born US citizens.
The main argument was really over whether black people would be recognized as citizens or not, with one group of people claiming they shouldn’t be, and another group of people saying that not only were they citizens, free black people born in America had always been citizens, and the proposed Act (and later, Amendment) was simply declaratory of the law as it was and always had been.
And the “subject to the jurisdiction of” argument was not about the children of Irishmen or Italians or French immigrants at all, but was almost exclusively about Native Americans (who were held generally not to be subject to the jurisdiction of the United States as long as they were functioning within their own governmentally-separate tribal nations. To a lesser degree there was some argument about Chinese people and Gypsies, but it didn’t amount to a great deal, and I don’t recall anyone ever stating that the Chinese people or Gypsies were not subject to the jurisdiction of the United States.
But nobody ever contended that the child born on US soil of white, European, non-citizen parents was ever anything other than a natural born citizen of the United States.
The very fact of the particular quotes chosen by the birthers to proof-text their claim is an indication that they have been completely unable to come up with an unambiguous statement from what amounts to 4 entire weeks of Congressional meetings on the Civil Rights Act alone that would make their point. The best they’ve been able to do is come up with a few ambiguous statements that they could pull out of their proper context and twist to serve their own ends.
There are two possible ways to read Senator Howard’s words:
1) “Foreigners,” “aliens,” and “who belong to the families of ambassadors or foreign ministers” all mean the exact same thing, and are simply clarifying restatements of the same group of people.
2) “Foreigners,” “aliens” and “who belong to the families of ambassadors or foreign ministers” all mean different things, and Howard was including three groups of people in his sentence.
The second reading is deficient in three points:
First, it’s missing the “and.” This is in an indication that Howard is not talking about three different groups of people, but only one.
Second, “foreigners” and “aliens” are the same thing, so the whole construction really doesn’t make sense without that missing “and.”
Third (and most important) it goes against the entire context and the entire history of all that has been said previously that Senator Howard is summing up.
The correct reading of Senator Howard’s words is the first one. It’s your reading of his words. And it is consistent not only with the opinions of all other Congressmen of the era (including Trumbull and John Bingham) — it is consistent with virtually everybody who has ever spoken on the subject.
Agree. Here is a clearer statement by Howard:
“A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws….. They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States, as were born in the country or were made such by naturalization; and the Constitution declares that they are entitled, as citizens, to all the privileges and immunities of citizens in the several States.” Senator Howard, Cong. Globe, 39th Cong., lst Sess. 2765-66 (1866).
Notice he sees jus soli as the universal rule, an opinion shared by most everyone in such Congress. One can find a long list of quotations from such Congress here:
http://naturalborncitizenshipresearch.blogspot.com/2010/10/quotations-from-39th-congress-relevant.html
Rich D Valle,
If you are as you claim just looking for the truth, then why do you like a typical Obot replace “citizen” with the word “NBC” (“natural born citizen”) everywhere “citizen” appears? It looks like you have been to some Obot seminars to sharpen up your skills.
Democrat Party of MS responds…complete with exhibits.
http://www.scribd.com/doc/92436040/2012-05-04-MDEC-Motion-for-JOP-with-Exhibits
Orly will never make it to court in MS
I have no idea what you are getting at so let me state my position. Article II of the Constitution states, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen years a Resident within the United States.” Since there is no one alive today that is a citizen at the time of the Adoption of this Constitution only NBC’s are left. There are two categories of citizens in our country, NBC and Naturalized citizens.
The birthers believe that to be a NBC you must have two citizen parents. I cannot for the life of me find that spelt out anywhere. How could one prove that he is born of two citizens anyway? When you are born you are issued a birth certificate. The only thing a BC can prove is where and when you were born. The other information, such as parents can be ANYTHING the mother or father claim. What if a single mother who doesn’t know who the father is, puts down John Doe, Philadelphia, PA as the father – does that make it so? Is that proof that John Doe is a citizen? Consequently can that baby be considered NBC from a birther point of view?
This is where birthers fail. There are no rules or laws to explain how one proves he has citizen parents; sort of an oversight wouldn’t you think? The ONLY way to prove the matter is to produce not only your BC but also those of your parents and that has never been a requirement. Can you say otherwise?
Children born in U.S. of aliens (not diplomats or foreign soldiers) aren’t issued naturalization papers, just a BC like every other American born, so they MUST be NBC.
I’ve given more thought to what you wrote and I am confused why you would attack me instead of refute me. By you alluding to my “sharpened skills” I guess you cannot disprove what I wrote. In any case I use NBC instead of citizen because that is what the birther movement is all about, isn’t it? Birthers are the guys touting NBC all the time, not me. I know you cannot be a naturalized citizen to run for president; I think that was taught in the 5th grade.
Allow me to mention Senator Rubio of Florida. Is he a naturalized citizen? Did the government do something to proclaim citizenship to him or was he just issued a BC like the rest of us? His parents were Cuban citizens upon his birth in the U.S. and since he is not a naturalized citizen then he is by natural law a NBC.
JSYK – Outside of a presidential eligibility context, I ALWAYS just say “citizen” when the need arises.
Finally, while I disagree with you on the NBC issue we conservatives must keep the big picture in mind and work together towards removing Obama from office in November by focusing on issues that are plainly before us. NBC will never fly in any court or in the court of public opinion.
Right on Rich D Valle.
You know the founding fathers could have saved us a lot of time and millions of words by writing “naturalized citizens cannot serve as president”, which is exactly what they meant. Instead of using the exclusive language they used positive inclusive wording. I am sure if they knew one day there would be Birthers they would have had second thoughts. By all accounts they were much more preoccupied with what powers the chief executive would have and how he would be chosen rather than this qualification clause that was added without debate.
I have a suspicion that Birthers are closet racists who just hate Obama. President Chester Arthur had a Canadian father and I don’t recall a movement against him regarding that issue. Something has to be done to tone down the hatred between our two parties.
I know know there are at least two sensible conservatives out there. Maybe there is hope after all. 🙂
I’d like to add: It’s great to have a fellow conservative commenting on these threads. It has been frankly distressing to see an unexpected number of people who call themselves conservatives, who claim to be for the truth and the Constitution, doing everything possible to undermine both. Disillusioning, actually. I frankly never dreamed I would see such a significant number of conservatives, or at least people who call themselves conservatives, acting (as I believe you put it) like lunatics.
RC, this is a bit off-topic, but did you notice I’ve been outed as Bâri′ M. Shabazz over at Mario’s site?
You just can’t put anything over on these people.
You spent so much time and effort including writing a book under a pseudonym to hide your identity, Bari. That SaipanAnnie is so clever!
Yeah. And I spend all this time writing a book while I’m supposed to be on vacations with the family, and every couple of weeks Shel gets really hacked off at me for the time I spend on this blog, and the golf game is suffering. Have you seen my scores lately? And I’ve been ignoring calls from Congress and from Joe just to keep this thing going (of course figuring out how to brush Joe off, I must admit, has been a side benefit), and then SaipanAnnie just comes out with it and exposes the whole deal.
It’s really quite discouraging. At least when it comes out that my real dad was born in Omaha, it’ll end this eligibility nonsense. All I have to do is hang on until the turkey’s gettin’ plump (I’m talking about the Thanksgiving turkey, not Joe) and then all is golden.
Hey, don’t you love it how birthers turn snarling on any conservative who fails to jump on the bandwagon of their attempted destruction of the truth and the Constitution, history and laws of the United States?
Yes, John, it is very upsetting. This is a distraction that takes away from the conservative movement. Makes us look like a bunch of lunatics. I believe birthers have a true hatred of the fact that the GOP lost the election to a secretive Democrat. I believe Obama is ineligible for reasons other than having a Kenyan father as well as the horrible policies and broken promises, but that is not the topic of this thread and I won’t bore you.
If those reasons include a forged birth certificate, you ought to read my book on the subject. The technical aspects of examining that document were how I got into this whole thing.
I would have to say that the Constitutional side has actually, ultimately probably proved even a bit more interesting than the forgery-theory side, though, as I’ve learned so much about our history, our Founding Fathers, and other figures such as those who championed civil rights in the wake of the Civil War.
Both wings of the birther movement are frankly essentially scams on any and all of our fellow conservatives who are eager to believe and willing to ignore the facts in order to do so. I hope that statement doesn’t turn you off — I’d hate to lose a fellow sensible conservative — but I really personally have a high degree of confidence in its truth.
By the way, I think you’ll find a wealth of research here at this site on the “NBC” issue. Of course there’s this thread on Vattel, which punctures the idea that there is any actual evidence that the Founding Fathers used his concept of citizenship.
Note that in a dozen and a half posts in this thread, Mario Apuzzo has not been able to produce ONE SINGLE HISTORICAL QUOTE from anywhere around our Founding that says, “As Founding Fathers, we looked to the philosophy of Vattel to define our concepts of citizenship,” or, “By a ‘natural-born citizen,’ we mean one born on US soil of parents who are citizens,” or, “A person born without citizen parents is excluded form the Presidency,” or even, “There are three kinds of citizens: the natural-born, the native-born, and the naturalized.”
NOT ONE. So while Mr. Apuzzo writes volumes here in an attempt to defend his nonsense, he has utterly failed to refute the premise of this article, which is that there really is no significant evidence whatsoever that our Founding Fathers relied on Vattel for the meaning of “natural born citizen,” and TONS of evidence that the phrase came directly from “natural born subject,” and aside from the minor change in meaning from “subject” to “citizen,” means exactly what it had always meant.
Regarding your comment on producing one historical quote regarding Vattel: I posed the same question to the Birther faction on Free Republic and you wouldn’t believe the response I got! Someone said that Ben Franklin received 3 copies of Vattel’s book, Law of Nations and George Washington kept a copy of it and never returned it until very recently. Like that is the proof! LOL!
Thanks by the way for the heads up on other topics you cover. I do believe Obama’s BC is fraudulent if only by the fact that he has been successful in hiding every aspect of his life. Not very presidential. Kerry hid his because Bush had better grades but he DID release them eventually….still waiting for the military records though.
Oh, I was going to also mention this page, which serves as a handy guide to the content on this site. 😉
What’s more upsetting is someone claiming they are a member of Free Republic, and then deliberately misrepresent Senator Jacob Howard’s statement. That’s something that a conservative freeper wouldn’t do. Anyone with an IQ above plant life [my apology for excluding Brown] can see what you did.
To add to that, you’re on “IF” Obama was born in Hawaii. And naturally you have to come with the Big Lie obsession of ObOts calling people racist if they don’t believe Obama. But there you are on “IF”.
Still, you’ve provided enough, for Woodman & Co. to polish your apple.
Rambo:
Wow! What is your problem? I can’t quite understand what you are saying about misquoting Senator Howard. Are you saying I’m misquoting or the person I’m debating on Free Republic? If you mean me, then we are in for a discussion.
Ike seems to be Mario’s #1 bootlicker. He claims not to be a birther (or at least used to) but cheers on every point that is ever made in favor of Obama’s ineligibility or the birther definition of NBC, no matter whether it’s disproven, transparently false, or not.
There was a pretty funny comment by Ike back in March during the first debate that ehancock and I had with Mario, in which Mario was bruised so badly that he fled back to the safety of his self-moderated blog.
Mario apparently learned from that debate that he looks really bad when he flees the scene of a debate. So his new tactic seems to be to stick around and just keep baldly asserting that things that have been demonstrated to be completely false are as true as the statement that water is wet.
And Ike seems to have picked up on the technique.
I don’t even know what you’re hoping to accomplish at this point, Ike. You’ve been reduced to baldly asserting, with no evidence to back you up, that those of us who are telling the truth are liars.
And every time you reassert it, it only highlights the fact that you and Mario are the people who are actually doing the lying.
Anybody can read the actual 1866 debates for themselves and see that not once in the entire debates — 4 weeks of debate time in the case of the Civil Rights Act of 1866 alone — did ANYBODY, including those who preached that black people and Chinermen and Gypsies were not citizens — EVER assert that a child born on US soil of white European non-citizen parents was anything other than a natural born citizen of the United States.
Not once. That includes Senator Howard, it includes Trumbull, it includes Bingham, and it includes every other Representative and Senator in the entire United States Congress.
If you maintain otherwise, then produce the quote. If you claim that the meaning of Howard’s words was other than I stated above, then prove it.
Otherwise, you’re a bald-faced liar.